Equal Opportunity Tribunal of New South Wales CITATION: Adams -V- Helios Electroheat Pty. Limited [1996] NSWEOT COMPLAINANT: Ms Ruth Louise Adams First Respondent Helios Electroheat Pty. Limited RESPONDENT: Second Respondent Mr David Baker NUMBER: 55 of 1995 G Ireland ( Judicial Member ) TRIBUNAL: L Mooney J Strickland GROUNDS OF COMPLAINT: Discrimination on the ground of sex (sexual harassment) in the area of employment DATES OF HEARING: 02/28/1996; 02/29/1996; 04/11/1996; 04/12/1996; 06/17/1996 DATE OF JUDGMENT: 09/25/1996 Complainant: Mr W Adams (28 & 29 February 1996) Mr J Kells (11 & 12 April 1996) Respondent: First Respondent LEGAL REPRESENTATIVES: Mr D Gardner Cutler Hughes & Harris Second Respondent Mr C Blackmore Booth Mather & Blackmore Ms V Lydiard JUDGMENT IN FAVOUR OF: This complaint is referred to the Tribunal for enquiry by the President of the Anti-Discrimination Board pursuant to section 94(1), following an unsuccessful attempt to conciliate the complaint. The complaint is brought under Part 3 of the Anti-Discrimination Act 1977 ("the Act") which renders unlawful discrimination against another person on the ground of sex if, on the ground of the aggrieved person's sex the perpetrator treats the aggrieved person less favourably in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex, and in the case of employment, the discrimination occurs in circumstances which fall within situations dealt with in section 25. The application of these provisions to the allegations in the complaint will be dealt with in detail later. Mrs Adams commenced employment with the First Respondent on 30 September 1994. She was employed in a position described as secretary/girl Friday. Her main duties required her to act as secretary for the manager of the Sydney premises of the First Respondent; as receptionist to answer the telephone and to receive customers and visitors, and to type invoices and maintain the invoice and correspondence files. She was allocated a desk on the first floor of the First Respondent's premises at Rydalmere, the only other occupant of that floor being the Second Respondent, Mr Baker, who was the manager of the Sydney branch of the business of the First Respondent. Mrs Adams' desk was located at the top of the stairs which led from the ground floor. The first floor also contained the kitchen and toilet facilities. Mr Baker had been appointed manager of the Sydney branch during the month of June 1994. He was elevated to that position from his former position of factory floor manager at the Sydney branch, the factory floor being situated on the ground floor of the same premises. Mr Baker's predecessor as manager was Mr Wishart. The head office of the First Respondent was located in Melbourne. Mr Batkin was the managing director and Mr Epskamp was its finance manager, also located in Melbourne. The First Respondent had one other branch office, in Adelaide. The position to which Mrs Adams was appointed became vacant following the resignation of the incumbent three months after Mr Baker was appointed manager. Then followed the appointment of Mrs Milne as receptionist/secretary who, after three days, advised Mr Baker that the job was too stressful for her and she would not be coming back. Mr Baker stated in evidence that Mrs Milne did not complain to him about his treatment of her. Mr Baker then employed Mrs Saad but Mrs Saad stayed for one afternoon. Mr Baker stated that she came into the premises in the afternoon to have a look at what the job entailed and she seemed quite happy when she left that evening. The next morning Mr Baker received a phone call from Mrs Saad advising him that she would not be returning as her husband was not happy as her employment would prevent Mrs Saad from attending to her duties at home and with the children. Mr Baker then employed Ms Tomiselo. Ms Tomiselo stayed only one morning. Mr Baker and Ms Tomiselo could not agree on suitable starting times for her position, and after she returned from lunch she said that the job was not suitable for her and she left. Mr Baker then described the situation which led to Mrs Adams' employment. He said that Mrs Adams was one of a number of applicants for the position for which she and the three predecessors had applied. Mr Baker contacted Mrs Adams on 29 September and she commenced work on 30 September 1994. Mrs Adams made many allegations of harassment, some of which had sexual connotations and some were of a sexual nature. Mrs Adams' evidence, in her description of the circumstances and details of the incidents of harassment, has been criticised for its lack of specificity of the sequence of events and of times and dates. Except in the incidents acknowledged by Mr Baker, it has been submitted to the Tribunal, that the other incidents are fabrications by Mrs Adams. Mr Baker had denied these incidents; and of the incidents that are admitted, it was submitted that Mrs Adams has grossly exaggerated the circumstances and their effect on her. The Tribunal is faced with the task of determining the veracity of the evidence that has been presented to it, especially the evidence of Mrs Adams and Mr Baker as to the claims of harassment. In doing so the Tribunal has examined in some detail the corroboration of those allegations and the denials. Before embarking on this task the Tribunal refers to an extraordinary situation that developed, arising out of the representation of Mrs Adams. This has concerned the Tribunal as it affected the adequacy of that representation and the ability for Mrs Adams' case to be fully and properly presented to the Tribunal. During the preliminary processes prior to the hearing Mrs Adams was represented by her husband who prepared the Points of Claim and accompanying statements. When the matter was mentioned before the Tribunal, Mrs Adams continued to be represented by her husband who does not have legal training. The hearing days were on 28 and 29 February 1996 and evidence continued on 11 and 12 April 1996, with submissions occupying the whole of 17 June 1996. On the first day of hearing Mr Adams was granted leave to continue to appear for the Complainant. On 11 April 1996, that is after a break of approximately six weeks, Mr Kells, solicitor, sought leave to appear for Mrs Adams, and this leave was granted. No explanation was presented to the Tribunal at that time for this change in representation. On the last day of the hearing, the solicitor for the First Respondent called Mr Adams as a witness. Mr Kells foreshadowed objections to Mr Adams evidence, as this might breach the privilege of Mrs Adams in relation to information which Mr Adams may have gained during his period of representation. The Tribunal ruled that Mr Kells could raise this privilege in respect to specific questions if they were asked. In the event, the nature of the questions asked of Mr Adams were not objected to. The questions related to the failure by Mr Adams during the first two days of the hearing, to respond to a notice to produce served on Mrs Adams. This related, inter alia, to income tax returns of Mrs Adams for the financial years ended 30 June 1994 and 1995. At the end of the first day of hearing on 28 February, when asked to respond to the notice to produce, Mr Adams stated to the Tribunal that he could only produce tax assessments for those years and, when pressed, stated that he thought that was what was wanted and that he did not understand the difference between a tax assessment and a taxation return. In his evidence on 5 April Mr Adams said that, following the hearing on 29 February, he arranged with Mrs Adams' accountant to pick up copies of the relevant income tax returns, which Mr Adams then produced. Mr Adams was then asked a question concerning a conversation he had with Mrs Adams on the night of 28 February. The Tribunal refused to allow that question, which was withdrawn. Mr Adams said that he put the tax return he obtained from the accountant in his briefcase on the night of 28 February, that he brought his briefcase with him to the Tribunal on 29 February "and I never saw it again. (sic) The tax return was in my briefcase, but I never ever saw it or any other document again. My briefcase was stolen and taken away with all the documents in it". Mr Adams stated Mrs Adams told him on 1 March that "You're no longer representing me". Mr Adams then produced a copy of the income tax return for 1995 which was admitted as an exhibit. In cross-examination, Mr Adams was questioned whether on 29 February he was asked to hand over the tax returns to the Tribunal. Mr Adams denied that he was asked to hand over the documents. He stated that he was not asked by the Tribunal to do so. He was asked the following questions: "Q. You were not asked for them and you did not hand them over? A. At Mrs Adams' request. Q. Sorry? A. At Mrs Adams' request, she instructed me that she didn't want them produced, if it could be helped. I told her that I would be in breach of court if I did not produce them. So they were in my briefcase and the moment anybody had asked for them - I had them - I had gone to a lot of trouble to get them the night before. Q. Are you saying Mrs Adams instructed you not to-- A. Mrs Adams instructed me not to produce them". At this stage the Tribunal interrupted the cross-examination in view of its privileged nature and the cross-examination on that aspect was discontinued. The reason for any reluctance to produce the 1995 income tax return became clear. It showed that Mrs Adams had not been frank in giving her evidence in chief about her prior employment history. The tax return showed that Mrs Adams had been employed with six different organisations during the 1994/5 taxation year. The group certificates relating to those employments did not show the dates of employment. Mr Adams stated that three of the positions were during the period after Mrs Adams ceased to be employed by Wang Australia Pty Limited and the date on which she took up employment with the First Respondent. In her evidence Mrs Adams had stated she was not employed between the period of her employment with Wang Australia Pty Limited and the commencement of her employment with the First Respondent. Without objection, Mr Adams was asked if Mrs Adams explained to him why she had left the intermediary jobs. Mr Adams said she did say that she could not do the work, and she indicated that they had put her off. It was submitted to the Tribunal that this lack of frankness on the part of Mrs Adams in her evidence was a deliberate attempt to deceive the Tribunal about the unsatisfactory history of her work performance prior to joining the First Respondent. The significance of her failure to disclose her employment history served to emphasise the continuation of her inadequacies as an employee during her employment with the First Respondent. In addition, it was submitted that this aspect of the evidence of Mr Adams and Mrs Adams adversely reflected on Mrs Adams' credibility. The Tribunal accepts that Mrs Adams did not adequately disclose the nature of her immediate prior employment history, although it was clear she considered it to be irrelevant to her complaint. In view of the extraordinary circumstances surrounding Mr Adams' evidence the Tribunal has some hesitation in accepting a more sinister motive of deliberate evasion on the part of Mrs Adams which was sought to be drawn from Mr Adams' evidence for Mrs Adams' omission, especially that Mrs Adams had taken steps to prevent Mr Adams from being in a position to produce the copies of the relevant income tax returns. The Tribunal declines to make such an adverse inference against Mrs Adams based on the evidence of Mr Adams. The Tribunal accepts that Mrs Adams did not make a full disclosure of her immediate prior employment history, but finds that that non-disclosure has not had factual relevance in the context of the issues that the Tribunal is required to decide. The Tribunal accepts that Mrs Adams' performance during her employment with the First Respondent, was below the standard expected by the Second Respondent. More will be said about this aspect. Reverting to the somewhat extraordinary circumstances concerning Mr Adams' representation and his evidence, during the argument submitted to the Tribunal by Mr Kells when he foreshadowed objections to Mr Adams' evidence on the ground of privilege, Mr Kells revealed to the Tribunal a dramatic deterioration in the relationship between Mr and Mrs Adams between 29 February and 11 April 1996. Mr Kells stated: "In fact since that time (sic 29 February 1995), Mr Adams has had a apprehended violence order taken out against him, he has been charged with a breach of that apprehended violence, he wrote a letter which his daughter handed to Mrs Adams, to Mrs Adams, which I would seek to tender, in which Mr Adams blackmailed - was blackmailing his wife in that he stated, in brief ..". There was then an objection. Mr Kells continued: "But we understand the police are preparing to charge Mr Adams with blackmail, and if they don't follow it through I will. He - placing a summons on him". Mr Kells then referred to a letter written by Mr Adams to Mrs Adams. The Tribunal does not wish to make any comment in regard to the matters stated by Mr Kells, except to emphasise the highly unusual circumstances that confronted the Tribunal, in viewing not only this particular aspect of the evidence but in endeavouring to ensure that Mrs Adams' complaint was adequately dealt with before the Tribunal. Mr Adams was the last witness called by the Respondents. Mr Kells did not seek to introduce evidence in reply. He did seek to immediately commence his submissions to the Tribunal. The Tribunal was concerned that as Mr Kells was not present during the first two days of hearing when Mrs Adams had given her evidence, and as a transcript of that evidence was not yet available, Mr Kells had not had an opportunity to read and be acquainted with the evidence given on the first two days. Mr Kells insisted that his client wished to proceed immediately. At the suggestion of the Tribunal, a short adjournment was held to enable Mr Kells to obtain specific instructions to commence his submissions, or to delay until the transcript was available. But on resumption Mr Kells assured the Tribunal that he had firm instructions to proceed. The Tribunal then proceeded to hear Mr Kells' submissions, which took the rest of the day on 12 April. This background has not assisted the task of the Tribunal which is mainly to determine issues as to the substance of the allegations of Mrs Adams. Allegations of Harassment Mrs Adams' evidence was given on the first two days of the hearing, when she was represented by Mr Adams. In some respects Mrs Adams's evidence was not satisfactory. She was a nervous witness and had a tendency to gloss over details, and randomly select and describe instances of harassment without chronological sequence. These difficulties were not helped by the inexperience of Mr Adams in leading her through her evidence. The Respondents have criticised the nature of Mrs Adams' evidence for the difficult manner in which it was presented. They have submitted that the lack of specificity in some instances and some inconsistencies in other instances enhanced the general submission of the Respondents that Mrs Adams' evidence should not be accepted. Having regard to the nature of the allegations and to the state of anxiety one can normally expect from a person having to restate a series of most unpleasant experiences, the Tribunal does not discount, for the reasons suggested by the Respondents, the generalised nature of the statements made by Mrs Adams. The allegations of harassment can be listed in the following order as they were stated in evidence, although sequences may not be completely accurate. This lack of accuracy does not, in the view of the Tribunal, detract from the description of the incidents given by Mrs Adams. Mrs Adams stated that during the first three weeks of her employment, she has no complaints of Mr Baker touching her but stated "I could just feel him standing there staring and leering at me". Allegations of Touching Over the next five weeks the following incidents occurred: On four or five occasions, spread over a period of five weeks, Mrs Adams stated that Mr Baker "touched me on the neck and shoulders". "He would stand behind me watching me typing and he would rub my neck and shoulders with his hands while I was trying to work and type, and I pushed his hands away and told him to stop it, on four or five occasions." During this five week period, on an occasion when Mrs Adams was downstairs with Mr Kapur, the factory manager of the First Respondent, showing Mr Kapur the invoices which she had typed, Mrs Adams was standing on the opposite side of a bench to Mr Kapur and Mr Baker came up behind Mrs Adams and "grabbed me on the buttocks with his hands. He just didn't slap me, but he grabbed me on the buttocks and kept walking which upset me and hurt me very much". Again during the five week period, on two occasions "he put his arms around me and pulled me in close to him face to face, once in his office and once in my own". On the first of these occasions Mrs Adams stated that she was walking from the fax machine on the first floor and had to go into Mr Baker's office to put something on his desk. "As I walked through my office he came behind me and just put his arms around me and pulled me in close to him face to face". Mrs Adams said: "I just pushed him away and said: 'Don't do that'". The second occasion was in Mr Baker's office. "I was walking from my office through to his in the little hallway and once again he came behind me in his office and just sort of pushed me in further to his office and pulled me around and close to him face to face". Mrs Adams said that Mr Baker did not make any comment but he just laughed. Mrs Adams said that she pushed him away and told him not to touch her. During the month of November 1994, Mrs Adams described about four or five occasions when Mr Baker stood behind her, watching her typing and "all of a sudden leaned forward to pick up items off my desk and push them down my back and down the front of my dress, moving the object in his hand around, touching my breasts and leaving them there, and I would have to stand up and shake it out of me, and each time I told him not to do that, to get away. The last time I thought I wouldn't get up and shake it out. Maybe he gets his kicks watching me shake it out. I don't know, but I just left it there until he left the room. They're just the sort of things he would just do out of the blue while I was working at my desk". Mrs Adams described what Mr Baker would put down her clothes as - "a rubber ball, a thing that I had on my desk, and yellow stickers, little memo pads, and he would just pick them up all of a sudden and push them down me". Each of the above instances was described as the "touching" incidents. Allegations of Embarrassing Incidents Mrs Adams then described what was called "embarrassing" incidents: One Friday Mr Baker said that he wanted to be alone with Mrs Adams in the office, "to get me into his office to kiss me." That afternoon he tried to get Mr Kapur to leave the office early and to go home. Mrs Adams stated that later that afternoon she was sitting at her desk, Mr Baker was standing opposite the desk together with Mr Kapur. Mr Baker said to Mr Kapur "I'll give you an early mark, go, go home", and Mr Kapur said "No, I'll stay, I don't want to go home, I've got no-one to go home to", and Mr Baker told him "If you've got no-one to go home to well at least go home and play with yourself". On another occasion Mr Baker said to Mrs Adams that he wished he could be a fly on the wall "to watch my husband and I in bed. Especially seeing that I wear hearing aids he said: 'That would be a funny sight. If you didn't have them in, you wouldn't be able to hear a word he was saying, would you?'" Mrs Adams said that this conversation took place at her desk. Mr Baker was standing opposite her desk when he made those remarks. When asked what he then said, Mrs Adams said that he just went away laughing. "I said 'You know that's very upsetting'" and he walked away back into his room. "He would just make these comments and just, leave me sitting at my desk very upset, while he'd just walk away and laugh and he'd say these things, make fun of my, my wearing hearing aids, which I do." On another occasion Mrs Adams was downstairs in Mr Kapur's office, when Mr Kapur was present, "When Mr Baker said to me that he wished he had X-ray vision so he could see through my clothes". Mrs Adams said that Mr Kapur heard that comment. Mrs Adams said "I find your comments very rude, very offensive and I just walked straight upstairs and kept going and left him downstairs with Mr Kapur." On another occasion Mrs Adams was at her desk and Mr Baker and Mr Kapur were standing opposite her desk. "Mr Baker told Mr Kapur I had the hots for Mr Kapur which made me very embarrassed in front of Mr Kapur". Mrs Adams stated that she said "Oh Sanjay, just take no notice of the man he's very rude. Just take no notice, I am sorry, that's not true". On another occasion, Mr Baker was standing near the fax machine sending faxes and Mrs Adams was sitting typing at her desk. Mr Baker said to Mrs Adams "Come over here Ruth and see the beaut arse on this lady walking down the street". Mrs Adams said she did not get up from her desk. She said that Mr Baker was often looking out the window just watching girls walking up and down the street and making those sorts of comments. Mrs Adams said that this occurred towards the end of the time that she was at the office. She said that she just gave Mr Baker a dirty look and looked the other way and didn't say anything. On another occasion Mrs Adams said that she was typing at her desk and Mr Baker was looking out the window and said "Come over here Mrs Adams and bend over". Mrs Adams stated she just gave him a dirty look and looked the other way and said nothing. Towards the end of November, Mrs Adams stated that there were: "a couple of things that he said, but I didn't answer or comment to because, I thought what's the use of commenting, I told him many times 'stop this, go away, leave me alone, I find you offensive' but that got nowhere so I tried to ignore him". Allegations of Verbal Abuse Mrs Adams then described instances of verbal abuse: Mrs Adams stated that on two occasions Mr Adams called her either "dunderhead" or "stupid dunderhead". She stated that on one occasion Mr Baker described her as "dunderhead" on the phone and that on another occasion Mr Kapur overheard the remark. On one occasion Mr Baker called Mrs Adams "smart arse". Mrs Adams stated that on other occasions he said to her "have you finished the typing yet frizzle tits?", "where have you put this, frizzle tits". Mrs Adams stated that she said "That hurts, please don't call me those names it's hurtful". Mrs Adams described instances of the use of foul language to her by Mr Baker: About two or three weeks after Mrs Adams commenced her employment, Mr Baker asked her into his office and said "If you ever got any problems don't hesitate to come in here and discuss them with me. I used to often sit in your chair opposite in that desk, and would have heated discussions with my manager, Mr Geoff Wishart, at the time and we would often have very heated, hot discussions and use the eff word between us". Mrs Adams stated that she did not say anything on that occasion, she was shocked and stunned. She said he did not say "eff word." "He said the full four letter word." This was the only occasion on which Mr Baker used that word in front of Mrs Adams. Allegations Causing Mental Anxiety and Fear There was then a description of instances that caused Mrs Adams "mental anxiety and fear": During the month of November Mrs Adams and Mr Kapur were in Mr Baker's office. Mr Baker said that he was the manager. They had to protect his arse by not making mistakes or doing anything wrong, and protecting him. On another occasion, " he would just stare at me and say that he was attracted to me and that he felt like he could get into serious trouble with me but, he was afraid I'd report him." Mrs Adams described an instance when she became very scared when Mr Baker lost his temper. "One day Mr Baker was out up at the post office and Sanjay Kapur came upstairs and asked me for some sugar, they'd run out of sugar downstairs for the factory workers. And he said do I have any sugar that I can give him for morning tea. And I said 'let's go and have a look in the kitchen just behind my office'. So Sanjay and I walked into the kitchen and there was two jars there. Mr Baker and I didn't even use sugar. There were just two jars there and I was giving Sanjay one jar of sugar and we were walking out of the kitchen and Mr Baker came up the stairs and said 'What are you two doing in here? What are you doing?' I said 'I'm just giving Sanjay some sugar for the morning tea for the factory workers', and, he raged at me. He got angry and furious. He said 'I am the manager here not you Mrs Adams. I will make those decisions if Sanjay gets the sugar or not. He knows he has to order it through me. You're just the bloody dunderhead, the receptionist around here, you're trying to take over my position. I will decide if he gets sugar or not'". Mrs Adams said this occurred on 30 November 1994. Mrs Adams described an incident in the following way. "I was sitting at my desk typing, as usual and Mr Baker was standing behind me, watching me and I made a typing mistake, I pressed the wrong letter, a "p" instead of a "t" or whatever it was, and Mr Baker got angry with me and he put his hands round my neck and around my throat and shook me and made me choke, and he said 'You've made another typing mistake' and he shook my neck. And when I caught my breath I said 'You need someone that's perfect around here, I'm not'. And he laughed and went back into his office and I was sitting at my desk and I cried, and I got upset and I walked back into the toilets just behind my desk into, near the kitchen and I was crying, and I had an asthma attack, I had to stop myself from crying very quickly because I could not breathe, I caught my breath and I was just sitting in there alone and I was very frightened and scared." This occurred on 16 December. Other Employment Events Mrs Adams gave evidence that by Thursday 1 December 1994 she had decided to leave working with the Respondent. She went into Mr Baker's office, told him that she was leaving and that she was giving a week's notice. Mr Baker said that he did not want her to leave. Mrs Adams said: "I'm leaving, I've had enough of your rude behaviour towards me and your sexual harassment and the verbal abuse, it's just obnoxious. I'm giving a week's notice". The following day about 4 o'clock in the afternoon Mr Baker called Mrs Adams into his office and said: "I'm very sorry about the way I've behaved, I want to mend my ways, I don't want you to leave". Mrs Adams said "Oh I'm leaving next week". Mr Baker then asked Mrs Adams to think about it over the weekend and let him know on Monday if she had changed her mind. Mrs Adams said that she did think about her situation over the weekend, and if he really meant that he would mend his ways, she would give him another chance. On the Monday morning she told Mr Baker "we'll try again if you don't continue with these rude remarks and things touching me and upsetting me" and he said "Good, I'm glad you've decided to do that". It was Mrs Adams' evidence that from that time Mr Baker did not touch her in a sexual way again. He did, however, she said, become very critical of her work: "If I put a little crease in paper he would go crook. If I put something in the wrong spot he would be very angry with me. Little things. He found fault more with the work I did". On 14 December 1994 Mr Baker called Mrs Adams into his office together with Mr Kapur, and Mr Baker gave Mrs Adams a verbal warning about her work performance and he asked Mrs Adams to sign a document in front of Mr Kapur. Mrs Adams said that she was too upset to read the document, she just signed it. Mrs Adams said that the document acknowledged that she had received the verbal warning. Mr Baker said that if Mrs Adams did not improve, she would have to leave. On 15 December Mr Baker attended a meeting of the managers of the First Respondent at their office in Melbourne. Mr Batkin, the managing director of the First Respondent, and Mr Epskamp, accounts manager of the First Respondent, described the nature of that meeting. It had recently become the practice of the First Respondent to hold the managers' meetings each quarter. Mr Batkin and Mr Epskamp would prepare the agenda, mainly with reports on performance of the company and its branches and staff personnel issues. On the occasion of 15 December, included for the first time was a section in the agenda and the accompanying papers which Mr Batkin considered to be the elements to affirm the statement about the company's policy in relation to equal opportunity. The statement contained in the agenda papers was in the following terms: Relations head office. Branch, branches, branch. Communications relations. At all times with any staff members to be - only on a professional cordial level. No verbal, sexual, written abuse, derogatory comments or gestures will be tolerated within any section of the company. If a problem arises with performance or attitudes of a particular employee this is only to be addressed to the employee's superior. Then in turn advise the managing director of the dispute before any action, comments or warnings are issued. This directive not a passive statement. Mr Batkin, the managing director of the First Respondent, stated that at the meeting on 15 December, Mr Epskamp raised the issue of Mrs Adams' performance. Mr Epskamp was concerned about the amount of errors which were coming through on invoices and the banking records. The meeting resolved to formally give Mrs Adams a warning. As described earlier, on 16 December the "choking" incident occurred. On Monday 19 December Mrs Adams did not go to work. She stated that this was her first day off, that she was sick due to stress and too scared to go in to work with Mr Baker after all the things he had done. On 20 December Mrs Adams went back to the office and Mr Baker gave her a written warning, because on the day before he had found a mistake in the red invoice book. Mr Baker called Mrs Adams into his office, together with Mr Kapur. Mr Baker showed Mrs Adams the mistake that he had found, and said: "here's another mistake, sign this, this is your first written warning. I told you not to do one more mistake, 'cause you're going to be out the door". Mrs Adams said that she signed the notice. Mrs Adams said that before she was called into Mr Baker's office, she was going through what she had missed the day before, and that she found a lot of mistakes that Mr Baker had made. She then mentioned this to Mr Baker in front of Mr Kapur and said "see all these mistakes that you have made whilst I was away yesterday". Mrs Adams said that she was very upset, that she was unable to go out that evening to celebrate her wedding anniversary. Mrs Adams said that during the rest of the day on 20 December Mr Baker kept away from her, that she tried to get on with work. The following day, 21 December, Mrs Adams was feeling ill and went to see her doctor, Dr Hung. Dr Hung issued a certificate that Mrs Adams was unable to work for two days. Mrs Adams phoned Mr Baker to tell him that she would not be coming in that day because she was sick. She also phoned Mr Batkin in Melbourne. Mrs Adams stated she told Mr Batkin that she would not be able to go back to work while Mr Baker was in the office. Mrs Adams said: "I told him specifically that he (sic) Mr Baker had put his hands down the front and back of my dress and that he had grabbed my buttocks and that he, he had called me the three hurtful names". She said that Mr Batkin expressed surprise and said: "I've never heard of anything like this before, I'll discuss it with Mr Baker and get back to you in the next couple of days". Mrs Adams asked Mr Batkin could he ring her back that day. He said "no". In fact Mr Batkin did not phone Mrs Adams until 9 January, after Mrs Adams had contacted him again. In the intervening period the offices of the First Respondent had been closed on 22 December until 9 January 1995. On 9 January 1995 Mr Batkin advised Mrs Adams on the phone that he had discussed "these things" with Mr Baker, and that he had denied the allegation, that Mr Batkin thought that Mrs Adams was being very petty. Mr Batkin said to Mrs Adams that he thought she was making up the allegations, that he had no grounds to dismiss Mr Baker, and that he believed him, that he had been his manager for a long time, and that he considered Mrs Adams was only after compensation. Mrs Adams said that she was very upset and hurt by these comments. Mr Batkin asked Mrs Adams whether she was coming back to work and she said that she would not go back while Mr Baker was still employed there. Mrs Adams went back to see her doctor, and received a certificate for two weeks' incapacity for stress. Copies of the medical certificates given to Mrs Adams were provided to the Tribunal. Dr Hung was not called to give evidence. The Tribunal accepts the copies of medical certificates as evidence of the period for which Mrs Adams was certified to be incapacitated for her work. Copies of the medical certificates were sent to Mr Batkin. Mrs Adams lodged a claim for workers' compensation with the insurance company of the First Respondent. Mrs Adams received compensation for the period from 21 December 1994 to 29 January 1995. Support for the Complainant Mrs Adams called two witnesses to support her claims; Ms Kylie Liccardy and Mrs Alicia Allsopp. In her evidence, Mrs Adams also suggested that Mr Sanjay Kapur, the production supervisor of the First Respondent, who worked on the ground floor of the Rydalmere premises, was present and would support some of her allegations. It will be seen later, Mr Kapur was not able to support Mrs Adams. Ms Liccardy was employed by the First Respondent for a period of approximately nine months from 20 May 1991 to 30 March 1992 - approximately two and a half years before Mrs Adams commenced her employment. Counsel for Mr Baker objected to the evidence of Ms Liccardy. It was allowed by the Tribunal on the basis of its likely assistance in establishing similar facts to those alleged by the Complainant. Ms Liccardy was a young woman who was nervous about giving her evidence. However the Tribunal accepts Ms Liccardy as a truthful witness, notwithstanding that she obviously found it stressful to relate situations that had caused her stress during her employment with the First Respondent. She worked in the factory on the ground floor of the Rydalmere premises and she was the only woman amongst a group comprising, at different times, up to six males. She stated that she left her employment because of Mr Baker. She stated he used to hassle her. She related one incident - when she walked up the two flights of stairs to the first floor, Mr Baker was standing at the bottom of the stairs and he said "oh I wish you had a short skirt on" or "something like that". On other occasions Mr Baker would tell filthy jokes in front of her. On other occasions, when other males would tell dirty jokes, Mr Baker would say words to the effect "oh you shouldn't be doing that". She said she would often go home in tears. She said she complained to her manager, Mr Jim Murray, but Mr Murray said he could not help her. Mr Geoff Wishart was then the state manager. She said that Mr Murray went to Mr Wishart who did nothing about it. She said that finally she went herself to see Mr Wishart to talk to him about Dave Baker, and that day she rang up her mother and father to tell them that she was leaving because she was sick of the hassles that she got from Mr Baker. Ms Liccardy said that she went to Mr Wishart on two occasions, once on her own, on the last occasion, and once with her manager, Mr Jim Murray. Ms Liccardy was 17 years of age at that time. Ms Liccardy said that Mr Baker would occasionally swear in front of her. In relation to the dirty jokes, she said that she did not complain to Mr Baker, but she complained to her manager, Mr Jim Murray. She said that she was often upset when she came home, and she would be in tears. Because of the recession, she persisted with her employment, but she developed Bell's palsy, which caused her to be paralysed on the right side of her face for three months, and that this was caused by the stress from her employment. Questioned further about Mr Baker's telling of dirty jokes, she said: "David just come out with a big smile on his face and just say all these things about women, and every time I would walk in of a morning he would ask me about my personal life, like what I did last night in my relationships and all that". She said that on her last day, when she complained to Mr Wishart, she told him about the dirty jokes and that she had also previously told Jim Murray. Mr Wishart was called as a witness by Mr Baker. He stated that he knew nothing about the complaints of Ms Liccardy till he read the newspaper report of her evidence, on the morning of his evidence. He also denied that Ms Liccardy had at any time complained to him that she was being sexually harassed by Mr Baker. He did say that Jim Murray related to him a complaint from Ms Liccardy. He described the complaint: "to my recollection, I'd say mistakes in jobs and a conflict in personalities. That's the only thing. In other words, she was told she was making too many mistakes, too often". As it will be relevant later, at this point the Tribunal notes that in his evidence Mr Wishart described Mr Baker as a hard taskmaster who did not take fools lightly. He would be very hard on people who made mistakes more than once. He said he had received complaints about Mr Baker's conduct from other employees, generally the factory workers. Complaints would be about being told off in front of other workers after making a mistake. This applied to both male and female workers. Mr Wishart denied that he and Mr Baker had ever had heated discussions. Mr Baker in his evidence, in relation to Ms Liccardy, stated that he had cause to speak to her about her work, but at first he spoke to Mr Jim Murray, and towards the end of her employment he would get Mr Murray and Ms Liccardy together to discuss her work performance. He spoke severely to Ms Liccardy about her performance. He did not recall the occasion Ms Liccardy was walking upstairs when he said that he wished she had on a short skirt. He had not heard of that allegation before. He said he was surprised to hear that Ms Liccardy said that she left because of him. He could not recall that Ms Liccardy had ever been distressed or crying whilst at work. Mrs Allsopp is the sales manager of Viking Office Products. Mrs Allsopp is the current supervisor of Mrs Adams. Her evidence was not relevant to the allegations of Mrs Adams. Mrs Allsopp gave evidence that Mrs Adams was employed by Viking Office Products from 23 January 1995 and that Mrs Adams' performance during her employment has been of a high standard. She has won competitions amongst the staff for motivation and interest in their work. Mrs Adams did not need any more help in her job than other new recruits and she had developed into an above average employee. Mrs Adams is an order entry operator, which involves in-putting invoices into the mainframe. The role does not involve typing of invoices. The role therefore is somewhat different from the role that Mrs Adams was performing with the First Respondent. Mrs Adams continues in her employment with Viking Office Products. Mrs Adams' work performance A considerable part of the evidence in this enquiry related to the work performance of Mrs Adams during employment by the First Respondent. The quality of this work was criticised by Mr Baker, her direct supervisor, and especially by Mr Epskamp, the accounts manager in the Melbourne head office. It was said she made errors in invoicing, banking and filing job cards. It was also admitted by the Accounts Manager that when the letter from the Anti-Discrimination Board, outlining Mrs Adams' complaint, was received by the First Respondent, they had gone back through the company records looking for errors. Mrs Adams denied her performance was as poor as the Respondents alleged. She admitted her typed invoices were often messy but said it was because the customers or the company itself required alterations to them. She explained they were not generated by computer but in triplicate on a typewriter, which made the alterations difficult. She pointed out that she also typed quotes, faxes and correspondence, but no criticism was made of these. She alleged that mistakes in the banking attributed to her could in fact have been the work of Mr Baker and in the filing, of either Mr Baker or Mr Kapur. She also pointed to the willingness of her present employer to testify as to her ability. The Tribunal was not satisfied of its having particular relevance to Mrs Adams' complaint of sexual harassment. The Respondents submitted that Mrs Adams was criticised for her work, that the criticism was deserved, and that her resentment of it was such that she fabricated her claims of harassment by Mr Baker. For a number of reasons, the Tribunal rejects this submission. Firstly, the Tribunal noted that the documents tendered as evidence of Mrs Adams' errors were inconclusive as to the authorship of those errors and fell short of substantiating the degree of error attested to by Mr Epskamp. Secondly, the Tribunal's findings as to the management style of Mr Baker, which are discussed later in this decision, also led it to doubt that he gave Mrs Adams appropriate training in her tasks. Undoubtedly, that same management style, together with his continued badgering of her after she withdrew her notice, would have created an atmosphere in which it is very difficult for her to work satisfactorily. The Tribunal considers the Second Respondent's statements about the extent of Mrs Adams' inadequacies did not sit well with his action in persuading her to stay on, after she enquired as to her progress after her first few weeks in the job and after her resignation on 1 December. When it was put to Mrs Adams in the course of cross-examination that she could not take criticism, she admitted that she resented criticism which she felt was unfair. Mrs Adams was also forthright in her denial under cross-examination that she had fabricated her claims in order to obtain an award of compensation. The Tribunal accepted Mrs Adams evidence that she first contacted the Anti-Discrimination Board on the advice of Kathryn Greiner, after telephoning her radio talk-back program on 21 December to tell of her problems with her employer. It also considered that her frankness about Mr Baker ceasing to touch her sexually after her resignation on 1 December and about her taking up new employment in the month after she ceased at the First Respondent were matters that were inconsistent with the Respondents' submissions that her allegations of harassment were fabricated. The Tribunal is not persuaded that Mrs Adams would have contrived and persisted with the claims of harassment as a means to counter a prospective termination of her position, or as retribution for the stress she has experienced. Case for the Respondents Second Respondent (Mr Baker) The evidence for Mr Baker was given by Mr Wishart (to which reference has already been made): Mr Kapur; and Mr Baker. Except for four incidents, Mr Baker denied each of the allegations of Mrs Adams relating to his conduct. Mr Baker was examined separately as to each allegation. Either he denied the allegation or he did not recall the incident. The majority of the more significant allegations were denied. Three of the exceptions were: the use of the phrase "frizzle tits"; calling Mrs Adams smart arse; the sugar incident. Mr Baker stated he used the term "frizzle tits" when he was in the reception area with Mr Kapur and Mrs Adams. "I related an article from the ABC's Backchat the night before when the person who had written into the show was a Norma Frizzletits, and I thought it quite an odd name". He said he called Mrs Adams a smart arse on the occasion of either the last or the second last day she was at work, when she came: "racing into my office and said 'look, you have made a mistake on this thing you did yesterday', and I said 'Ruth, I am too busy. I haven't got time to sit here and argue petty little things with you like this and don't be a smart arse and go back to your desk'". He said he could not recall whether Mrs Adams responded to that. In relation to the sugar incident, Mr Baker said that the factory had a policy that the company bought the coffee, tea and sugar for the workers in the factory, and the policy "was if they were running low they had to tell us before it actually ran out so that it gave myself or Geoff, time to, if we were up the street, we would get whatever was required for the factory. On the day that you are talking about, Mr Kapur said he needed sugar for the factory because they hadn't - they had run out of sugar for their morning tea. I explained to him he knew the policies because he had been there for some years and I wasn't going to go and get sugar for them. I then went out into the factory to get something. When I returned upstairs Mr Kapur and Mrs Adams were coming out of the kitchen and they had the sugar from the upstairs kitchen. I said to Sanjay 'I have just spent ten minutes discussing this with you. If the workers want coffee, tea or sugar they are to tell me before they run out, not when they run out. Put it back please', at which stage Mrs Adams said to me 'Give it to them. We don't use it'. I then raised my voice to Ruth and said 'If you want to run the show, I'm going to ring John now', and I went back into my office". He said that Mrs Adams then complained to him that she was very upset that he had raised his voice at her and he had sworn at her. "I apologised to her for raising my voice at her, but I said to her I didn't consider 'bloody' to be a swear word, so I wasn't going to apologise for that". Mr Baker related the fourth occasion. This was the occasion he put his hands round Mrs Adams' neck. In this incident Mr Baker stated: "To the best of my memory, Mrs Adams was typing something and we were waiting on it. It was a rush to get the invoice done or whatever it was, to get it out on the courier. Mrs Adams made a mistake and jokingly I grabbed her in the neck and said 'Ruth, you silly thing, it should be the other key, not that one', and that was all that happened". Mr Baker said he didn't remember Mrs Adams complaining to him, nor did he recall her bursting into tears, nor did he recall her going to the bathroom, nor did he recall her having an asthma attack. He was not aware she was asthmatic. Later in his evidence Mr Baker referred to an incident on 28 November, that is the day before Mrs Adams stated that she recalls an occasion when Mr Baker put an object down her front. On 28 November Mrs Adams accompanied Mr Baker when Mr Baker drove Mrs Adams' car to Parramatta to enable Mr Baker to pick up his wife's car from the garage where it was being repaired. This incident was referred to by the Respondents as an indication that it was inconsistent with Mrs Adams' allegations of harrassment if she accompanied Mr Baker on this occasion, a person she held in such disregard. In cross-examination on this incident Mrs Adams stated that she went quite willingly with Mr Baker, and she did not feel threatened because Mr Baker was driving and she knew he would want to be on time to pick up his wife's car. The Tribunal has had regard to this incident in arriving at its conclusions. Although it demonstrates a curious anomaly to Mrs Adams' description of her stressful relationship with Mr Baker, it is not determinative of a denial of the general weight of evidence in this enquiry. Mr Baker was not cross-examined in any depth, as to his denials and non-recollection of some of the allegations of Mrs Adams. Mr Baker stated that prior to joining the First Respondent in 1989 he was in the navy. On discharge he was a chief petty officer. He went from school to an apprenticeship in the navy. He said he adopted a different style of management when he moved from the navy to the First Respondent. He described his different approach in these terms: "Well in the navy, if something wasn't done I would order it to be done. You could ask someone to do something. If they didn't do it you could order them to do it. If they didn't do it I could then charge them. When I went to Helios it was all more of a 'can you do this' position. There was not the ordering atmosphere with the threat of a charge or something to back you up, so that it was more managing people rather than the military, if you gave an order, it has to be obeyed". Mr Baker denied that he received any complaints from Mrs Adams concerning sexual harassment, but she did complain in response to criticisms that he had made of her. He did not relay these complaints to Mr Batkin, managing director of the First Respondent. Mr Baker described the complaints procedures in place in the First Respondent at the time when he became manager of New South Wales in May 1994. Mr Baker referred to passages from his letter of appointment which are in the following terms: "David: You are directly responsible to the directors of the company for all aspects of operations of the Sydney branch; administration, personnel, production, promotion and sales. Managers shall at all times whilst representing Helios conduct themselves in a manner becoming of their position and represent the company as a whole to the best of their ability. David; I think this will be enough to keep you out of trouble for a while. Again I wish to congratulate you on your acceptance. If you have any queries or problems in the future that you feel unhappy with, please contact me promptly so we can work together to rectify them". This last paragraph was said to be contained in the last two paragraphs of the appointment letter. This letter was signed by Mr John Batkin. Mr Baker stated that at the managers' meeting on 15 December 1994 he was handed a booklet which contained the following statement (referred to earlier): "Relations Head Office. Branch, Branches, Branch. Communications relations. At all times with any staff members to be - only to be on a professional cordial level. No verbal, sexual, written abuse, derogatory comments or gestures will be tolerated within any section of the company. If a problem arises with performance or attitudes of a particular employee, this is only to be addressed to the employee's superior. Then in turn advise the managing director of a dispute before any action, comments or warnings are issued. This is a directive, not a passive statement". Mr Baker said there was no particular discussion at that meeting in relation to the New South Wales branch or the use of that policy. Mr Baker also referred to an earlier management meeting in August 1994 in Melbourne. A document which was produced at that meeting contains a page headed "Management Head Office and Branches functions and responsibilities". Then followed a statement which was in similar terms to the statement contained in Mr Baker's letter of appointment. "Management staff shall at all times when representing Helios conduct themselves in a manner becoming of their position and represent the company as a whole to the best of their ability. To supervise and participate in all areas of administration, responsibilities to which they are appointed within the company with a positive productive attitude. Manage staff at a level to achieve the best performance and loyalties of our employees". That was the extent of Mr Baker's evidence of the practices and procedures of the First Respondent for dealing with complaints and grievances. The Tribunal will revert later to these aspects of the evidence of Mr Baker. Mr Baker called one other witness, Mr Wishart, to whose evidence reference has already been made. It is noted that Mr Wishart was a state manager for New South Wales of the First Respondent prior to Mr Baker's appointment, and that Mr Wishart had recommended Mr Baker to succeed him. Generally, Mr Wishart was supportive of Mr Baker. Of course, he was not in a position to relate to Mrs Adams' evidence. Mr Wishart was no longer employed at the time of Mrs Adams' employment by the First Respondent. As previously noted, Mr Wishart described Mr Baker as a very hard taskmaster and said that Mr Baker was very hard on people who made mistakes more than once. He said that Mr Baker gave 100 per cent and that he displayed a serious nature in carrying out his duties, and did not tolerate fools lightly. He said that he received complaints from both male and female staff about Mr Baker's method of dealing with mistakes, and the type of complaint he received he described in the following way: "'He told me off in front of the other workers that I was making a mistake', so therefore it was a mistake of either ego or something like that, being hurt, and they didn't appreciate it being dragged out in front of the factory to be told or corrected of their mistakes". He also said that his one criticism of Mr Baker was in regards to his inter-personal skills. Mr Wishart referred to an occasion when a female employee, Dianne Kennedy, went home on one occasion. Mr Wishart described the reason as a clash of personalities between her and Mr Baker. The Tribunal finds that Mr Wishart's evidence is of little assistance in determining the crucial issue of whether Mrs Adams was subjected to acts of harassment or other discriminatory conduct by Mr Baker. He did confirm a harsh management style of Mr Baker towards staff, though that attitude applied to staff of both sexes. There is a divergence of the evidence of Mr Wishart and of Ms Liccardy concerning her complaints of harassment by Mr Baker. The Tribunal gained the impression that Mr Wishart still supported Mr Baker. Having regard to its observations of the two witnesses and the fact that Mr Wishart was the sponsor of Mr Baker in his appointment as state manager for New South Wales, the Tribunal prefers the evidence of Ms Liccardy, to the extent it conflicts with the evidence of Mr Wishart. The Tribunal considers it is more probable that Ms Liccardy did suffer the two incidents of harassment by Mr Baker to which she related, that she did report those incidents to her immediate superior, Mr Murray, and that directly or through Mr Murray, those incidents were reported to Mr Wishart. Mr Wishart failed to take any remedial action in relation to those incidents. The First Respondent (Helios Electroheat Pty Limited) The first witness called for the Respondent was Mr Kapur, whose evidence, where it is material, conflicts with the evidence of Mrs Adams. Mrs Adams related to six incidents where she expected Mr Kapur was in a position to observe the occurrences and would support Mrs Adams in her description of those occasions. These incidents and Mr Kapur's responses can be summarised: An occasion that Mrs Adams described, when on a Friday he was present with Mr Baker and Mr Kapur and Mr Baker said to Mrs Adams that he wanted to be alone with her and to kiss her in his office, and told Mr Kapur to go home. Mr Kapur said that he did not recall this occasion. On another occasion Mrs Adams stated that Mr Kapur was present when Mr Baker said to her he wished he had X-ray vision so he could see through her dress. Mr Kapur said he did not remember Mr Baker saying words to that effect. There was another occasion in the presence of Mr Kapur, Mrs Adams stated that Mr Baker said to her that he had the hots for her. Mr Kapur said he did not remember such an occasion, that he did not remember Mrs Adams say "Don't mind him, he is just rude". Mr Kapur also denied that he had been present on any occasion when Mr Baker had called Mrs Adams a 'dunderhead'. Mr Kapur was then referred to an occasion that Mrs Adams said Mr Kapur would have overheard Mr Baker saying to her "I am the manager. You have to protect my arse by doing things". Mr Kapur denied that he had overheard this statement. Mr Kapur was then asked about the incident when Mrs Adams stated that Mr Baker grabbed her on the buttocks. Mr Kapur said he did not witness this occasion. Mr Kapur was then referred to the sugar incident. Mr Kapur described, in not dissimilar terms to Mrs Adams, Mr Baker's outburst at both of them, when he found Mrs Adams handing the sugar to Mr Kapur. Mr Kapur, however, could not recall Mrs Adams saying to him, after that incident "That's not all, Sanjay, there are a number of things I have not told you", and that her hands were shaking. Mr Kapur could only recall Mrs Adams saying "I can't believe this". Mr Kapur also confirmed Mr Baker is very harsh on people working for him. "It was like a military command station". He said that Mrs Adams had not complained to him regarding Mr Baker's treatment, and especially she had not complained to him of any sexual harassment by Mr Baker. Mr Kapur took special leave from his employment from 22 December 1994 till 12 February 1995. This was to enable him to travel to India, where he was married. Mr Kapur's position with the First Respondent is production supervisor, the second in charge of the office in Sydney. The Tribunal has carefully considered the evidence of Mr Kapur, especially as in some material respects, he failed to support evidence of Mrs Adams. Mr Kapur was not subjected to any vigorous cross-examination, and his lack of recall of the events referred to was not fully tested. The Tribunal is left with a conflict between the evidence of Mrs Adams on the one hand, and the evidence of Mr Kapur. Although not outright denying the description of events by Mrs Adams, Mr Kapur did not remember or did not recall the events, or, in the case of the sugar incident, he was not able to support Mrs Adams' description of the degree of distress she described, and her reactions to that stress. The Tribunal has taken into account the lack of positive support of Mrs Adams' evidence in relation to these incidents, in addressing the totality of the evidence relating to the crucial aspects of these complaints. The Tribunal has also had regard to the possibility, but places no more emphasis than that, that Mr Kapur having recently been married, is anxious to retain the position of production supervisor with the First Respondent, and may not be willing to give evidence contrary to the interests of his employer. Mr Epskamp, who is the accounts manager of the First Respondent, gave evidence, and some aspects of his evidence has been referred to earlier. Much of his evidence related to the inadequacies in Mrs Adams' performance in her job with the First Respondent. He was adamant that Mrs Adams was not coping with the tasks of issuing of invoices, maintaining the job cards or with the banking procedures and records of the First Respondent. Mr Epskamp bore the brunt of the impact of these mistakes on the data system and accounting controls of the First Respondent. Mr Epskamp stated he would have taken the opportunity early in December 1994 for Mrs Adams to leave the employment of the First Respondent. Mr Epskamp said he was not aware of any discrimination or harassment which may have been taking place in the Sydney office of the First Respondent, towards Mrs Adams. He was not aware of Mrs Adams' allegation of sexual harassment until advised by Mr Batkin on 21 December 1994. Mr Epskamp dealt with the managers' meetings which took place in August 1994 and 15 December 1994. His evidence is consistent with Mr Baker's description of the directions given by Mr Batkin to his managers on those occasions, relating to the handling of staff complaints. After receipt of a letter from the Anti-Discrimination Board on 2 February 1995, which gave details of Mrs Adams' allegations, Mr Epskamp contacted the Metal Trades' Industry Association to see if there was anything which the First Respondent should have done which had not been done, and to see what was required in a legal sense to deal with the letter from the Board. Mr Epskamp was then asked if he received material from the MTIA which dealt with issues of sexual harassment or discrimination, prior to December 1994. His evidence then proceeded: "A. I have the impression they do, I have no specific bit of paper that I can say certainly this is it, and this is what it was, but my understanding is that there were items presented to us of that nature from the MTIA. Q. Well, do you keep those bits of paper or do you throw them (sic out)? A. Quite often we just throw them in the bin, because they are circulars that we get every - at least once a week, that sometimes have very little relevance to us". Later, Mr Epskamp was asked, in relation to the directive issued to the managers on 15 December 1994: "Q. Is that the first time that the company had addressed that issue, the issues that are in that statement? A. In a formal way, yes, that is correct". Later again, Mr Epskamp said he considered the company had, prior to 15 December 1994: "Informal procedures put in terms of our company's commitment to looking after people, I always felt that we had an open policy where people were approachable and that included all senior management about any issue at all". He was then asked whether the First Respondent currently had a procedure, and he stated: "The company has started work on a series of policies, in response to advice from the MTIA". He stated that the company did not have a policy manual. Mr Batkin, managing director of the First Respondent, stated that the Respondent has a total staff of approximately 70, with an annual turnover of approximately $6million. He said its business operates from its head office in Melbourne, with branches in New South Wales and in South Australia. He stated that the first he knew of the allegations of sexual harassment made by Mrs Adams was in the phone conversation with her on 21 December 1994. In relation to the directive of 15 December 1994, he said that he considered that the employees of the company needed to be directed more formally. He said that he had in the past verbally told people in the company, and in previous reports had written specific directives as to how people were to handle and process grievances within the company. No instances were given of such directives. In the absence of any specific evidence, the Tribunal does not accept that prior to 15 December 1994 there had been any clear attempt to effectively institute procedures relating to complaints or grievances in the operations of the First Respondent. Mr Batkin's evidence showed that the directive on 15 December 1994 which he said was intended as a directive on grievance procedures, was vague and equivocal. The Tribunal is left in no doubt that the wording of that directive and Mr Batkin's description of his intention as to how it should be responded to by his managers would have left the managers who attended that meeting without adequate and proper instruction either on the company's policy towards discrimination or procedures to deal with complaints and grievances. His directions lacked any clear procedure for the dissemination among staff of instructions or directions to follow if they wished to make complaints. In particular, Mrs Adams had no knowledge as to the requirements of her employer for making complaints about the conduct of Mr Baker, towards her. There was no person in the Sydney office, superior to Mr Baker, to whom she could complain. She was left, ultimately, to complain to the managing director, Mr Batkin, which she did in a telephone conversation on 21 December 1994. Mr Batkin criticised Mrs Adams, on that occasion, for not specifying in detail the allegations against Mr Baker. The Tribunal does not accept Mr Batkin's evidence that all Mrs Adams stated to him in that telephone conversation was that she had been subjected to sexual harassment, and that she gave no details. That telephone conversation lasted for 13 minutes. He said Mrs Adams seemed upset, did not seem the same person he had spoken to previously. He said that she spoke of the mistakes in the invoices and of Mr Baker's attitude. Mrs Adams stated that she told Mr Batkin specifically that Mr Baker had put his hands down the front and back of her dress, and that "he had grabbed my buttocks" and that he had called her three hurtful names. She said that Mr Batkin was surprised and said that he had never heard of anything like this before, and that he would discuss it with Mr Baker and get back to Mrs Adams in the next couple of days. Mr Batkin did not contact Mrs Adams until she phoned and left a message for him on 9 January 1995, when he told her that Mr Baker denied her allegation of sexual harassment or verbal abuse. Mr Batkin did not seek from Mrs Adams any further details of her allegations. He said the first that he knew of the details of the allegations were in a letter received from the Anti-Discrimination Board on 2 February 1995. Mr Batkin stated that he arranged for a policy document to be issued within the company, prepared by Mr Epskamp in conjunction with the MTIA. This policy document was distributed to each branch, and is posted in the office and downstairs and in the tea rooms in every state branch, and it is on the notice boards. The policy statement relates to sexual harassment. It outlines how the company will investigate allegations of persons being harassed, and details of how the company will conduct an inquiry into the allegations. Mr Batkin said that the documents were issued in either March or April 1995. Mr Batkin said that the company is also intending to issue a policy document to every employee, which contains procedures for handling of complaints. The Status of the Evidence We now come to a most important part of the evidence. There are serious discrepancies in the evidence of Mr Baker and Mr Batkin, which flow from Mr Baker's termination of employment with the First Respondent. This took place on 5 May 1995. After attending the conciliation conference at the Anti-Discrimination Board, held to deal with Mrs Adams' allegations, Mr Batkin went directly to the Rydalmere premises where he summarily dismissed Mr Baker. Mr Batkin was accompanied by Mr Epskamp. Mr Batkin stated there was no connection between what took place at the conciliation conference and the dismissal of Mr Baker. Mr Batkin said that he had planned before he came to Sydney that he would dismiss Mr Baker during the day of the conference. Mr Baker accepted that he was summarily dismissed and stated that the only reason given to him by Mr Batkin for his dismissal was his handling of personnel, and that was all he was told. However, Mr Batkin stated that he and Mr Epskamp sat with Mr Baker for approximately 15 minutes and explained the number of complaints that they had received. "We also explained the complaint from Betty. I explained my conversations which I had with Mr Baker, and we had some heated conversations in the time, which I wasn't happy with. I explained that when he threw his job back in my face in July over the Rebecca Vizar issue, that we felt that we were going through teething problems and we could get through them. And I explained the company could no longer tolerate behaviour like this. And then I requested Mr Epskamp to ask Betty to order a taxi, and I stayed with Mr Baker until the taxi arrived". The reference to the complaint from Betty related to a person who was employed as a casual secretary in the place of Mrs Adams. She had complained to Mr Epskamp about Mr Baker's: "sort of military style of management within the company. She felt that she could not work under him and did not want to leave the company, and that she asked Mr Epskamp if we could do something about it". Following his dismissal, Mr Baker wrote to Mr Batkin, requesting an explanation for his dismissal. Mr Batkin replied in a letter dated 10 May 1995. That letter was tendered in cross-examination of Mr Baker. His counsel initially objected and subsequently withdrew the objection. The Tribunal considers the letter of particular significance, and omitting formal parts, sets out the text of the letter. "WITHOUT PREJUDICE Dear David, I refer to your letter of wherein you firstly claim you did not receive advice as to reasons for your dismissal and secondly written conformation (sic) of those reasons. With regard to the first point I feel that sufficient explanation was given during our discussion but nevertheless to comply with your request I can offer the following: 1. The attendance of myself and Harry Epskamp at the Anti-Discrimination Board relating to the complaint brought by Mrs Ruth Adams against you and the company was irrelevant to the decision to terminate your employment. As there has been no determination of guilt or otherwise and the matter appears to be still pending this hearing had no bearing on the decision. Had we received an order to terminate your employment by the Tribunal or Courts as apparently under the legislation can be ordered we would have had no option, but again this was not the case. 2. The reasons as stated were based on a failure to perform in terms of staff management and the verbal abuse of staff in both Melbourne Head Office and in your own Sydney Office. Investigations into the high turnover of staff in your branch have revealed a number of complaints about the manner in which you have berated and abused staff beyond what could be considered proper behaviour in the name of doing your job. As was pointed out to you during our discussion on Friday, you had been previously advised of what was considered suitable behaviour on more than one occasionally (sic) by myself and the issue was also mentioned at our most recent managers meeting in December 1994. However we received further complaints about your behaviour in this regard and when weighted with previous evidence gave us sufficient grounds to evaluate your performance. As I stated to you neither myself nor the company can expect good results when people are not motivated to work and the evidence gathered shows that people were not performing through your methods of dealing with them. Also neither myself nor the directors will tolerate the type of abuse that you used towards people. The evidence gathered highlights a failure on your part to treat people with even the most common decency to which they should expect to be treated, even in an employee/employer relationship. Without going into specifics these include: ° swearing at or about female staff ° abusing office staff for minor errors ° derogatory comments relating to racial origins of staff These instances were raised during discussions with you and you were advised this type of behaviour was neither suitable nor warranted and yet you continued this behaviour even up until as recently as the end of April 1995. At this point the weight of each individual incident was combined to give a detailed picture of the type of behaviour you demonstrate towards staff members, while perhaps each individual incident may not have been a sufficient ground for dismissal what was demonstrated was a continual picture of unacceptable behaviour and abuse of staff members. My considered opinion was that :- 1. the company would not tolerate this from any employee 2. the best interest of the company would not be severed (sic) by allowing this type of behaviour to continue unchecked. 3. as you had previously had these issues raised as requiring behaviour modifications this is the equivalent of receiving notice of a failing requiring attention. 4. your continued abuse of staff demonstrates that you (sic) either unwilling on (sic) incapable of changing your behaviour to what is acceptable and expected to any objective standard. 5. the best interest of the company would be best served by severing our relationship as to allow this behaviour without challenge is at least tacit acknowledgment that we would allow and tolerate your abuse and we certainly do not. I trust that this will outline the reasons for my decision, which as I said to you, was not taken lightly but in the view of overwhelming evidence had no choice but to implement". In cross-examination Mr Baker was asked about the specific charges made in the letter: "Q. What do you say about the suggestions in that letter that, for example, that you swore at or about female staff? A. I deny that. Q. No occasions on which you-- A. No. Q. --swore at female staff? A. I had no prior knowledge of anything of swearing of women or in that letter. Q. Mr Batkin didn't give you any specific instances? A. Specific instances, no". In his evidence, Mr Batkin, asked about this aspect of his letter, said that there was a disagreement between Mr Baker and the Melbourne secretary. Mr Epskamp had come to Mr Batkin and advised him of the disagreement, and Mr Batkin then had a discussion with Mr Baker. "I advised him that he was strictly instructed not to talk to any of our staff in any derogatory sort of manner. He said to me 'you've got the wrong man for the job, I'll resign'". This was in August 1994. Mr Baker was asked about the reference in the letter to abusing office staff for minor errors. Mr Baker said that there was an occurrence when he had a misunderstanding with the receptionist in Melbourne over the phone. He had wished to speak directly to Mr Batkin about a problem. The receptionist had come back to Mr Baker with a message from Mr Batkin. Mr Baker said to the receptionist "Well I don't accept that. I want to talk to Mr Batkin" and she would not put him through. He said "Well, I want to talk to Mr Batkin". She would not put him through and he said to the receptionist "You are over-stepping your mark there. I want to speak to Mr Batkin". He said that was the end of the conversation. Questioned on this matter, Mr Batkin said the receptionist's name was Rebecca Vizar. Mr Batkin said that the dispute between Mr Baker and Ms Vizar was not related to her refusal to allow Mr Baker to speak to Mr Batkin, it was over deliveries out of Melbourne, for which Ms Vizar was responsible for despatching the invoices with goods to the Sydney office, Mr Baker disputing that he had received some of the goods. Ms Vizar had complained that Mr Baker swore at her, according to Mr Batkin. He said that the complaint came through Mr Epskamp, and Mr Epskamp spoke to Mr Baker, that when Mr Epskamp admonished Mr Baker, Mr Baker had sworn on the phone to Mr Epskamp, who then hung up and advised Mr Batkin of what had occurred. This occurred in July 1994. Again Mr Baker was asked about the reference in the letter to derogatory comments relating to racial origins of staff. Mr Baker stated "that was the first I had heard of that as well". Mr Batkin however gave evidence that after Mr Baker was appointed manager, Mr Batkin received a complaint about the way Mr Baker spoke to one of the employees in Melbourne, who was an Asian gentleman. The complaint came through one of the salesmen, who complained that Mr Baker had abused Mr Tom Ng, that he had made a racial comment to him. The nature of the racial comment was not stated. Mr Batkin then said that he spoke to Mr Baker about the incident. The incident occurred in July 1994. Mr Batkin flew to Sydney either later that month or early the following month and again tackled Mr Baker about it. Mr Batkin said he would be surprised that Mr Baker told the Tribunal that he did not know what that matter related to. The contents of the letter of 10 May 1995, when taken together with the serious discrepancies that have been noted between the evidence of Mr Baker and of Mr Batkin, led the Tribunal to the firm view that Mr Baker had misled the Tribunal, not only in relation to the specific instances referred to, but generally his continued denials of specific allegations made by Mrs Adams. It is clear to the Tribunal that Mr Baker was a dictatorial and overbearing manager, who did not hesitate to abuse staff and those reporting directly to him as well as staff in other locations. Situations that displeased him, even minor incidents, such as the sugar incident, would bring down the unreasonable wrath of Mr Baker. The Tribunal has formed the most unfavourable opinion of Mr Baker and his attitude and approach to management and staff. In the opinion of the Tribunal he was quite capable of carrying out, in every one of the instances, the harassment that has been alleged by Mrs Adams. Application of the Act The relevant provisions of the Act to be applied to the inquiry are: Section 24 relating to discrimination on the ground of sex. The present provisions of section 24(1) commenced on 8 August 1994, that is prior to the date on which the subject matter of Mrs Adams' complaint, occurred. Section 25(2)(a) and (c), which relate to discrimination in work against employees arising out of conditions of employment and subjecting an employee to any detriment. Section 52 which renders unlawful the aiding and abetting of an act that is unlawful. Section 53 which renders an employer vicariously liable for the acts of employees, unless the act was expressly or by implication not authorised. For the purposes of this inquiry it is necessary to consider whether the First Respondent has acted in breach of section 24(1)(a) and section 25(2)(a) or section 25(2)(c) of the Act. If the First Respondent, as the employer of Mrs Adams, on the ground of Mrs Adams' sex, treats Mrs Adams less favourably than in the same circumstances, or in circumstances which are not materially different, the First Respondent treats or would treat a person of the opposite sex and (a) the discrimination relates to the terms or conditions of employment of Mrs Adams or (b) subjects the employee to a detriment, the First Respondent has acted unlawfully. The acts which need to be examined to determine their discriminatory nature, are not confined to acts or events of a sexual nature. If the acts or events are referrable to the sex of the Complainant and occur in employment and impact unfavourably on the terms or conditions of employment, or are detrimental to the employee, those acts or events are capable of being unlawful. In the case of Mrs Adams' allegations, the Tribunal must determine whether the acts or events, the subject of those allegations, caused Mrs Adams to be treated less favourably in the same circumstances a male person would have been treated. In the view of the Tribunal, there can be no doubt that the allegations of a sexual nature would not have occurred if a male person occupied Mrs Adams' position. It is ironic that in relation to the allegations of verbal abuse, it is likely that Mr Baker would not have distinguished between a female and a male person. His verbal abuse of staff was not confined to Mrs Adams. It indeed extended to the male staff. The Tribunal does not need to decide the validity of that proposition. But putting aside instances of verbal abuse, there is a plethora of incidents of abuse where the Tribunal is satisfied, even considering the overbearing nature of Mr Baker's management style, that he would not have treated a male person in Mrs Adams' situation to the same or similar abuse. The extent and the nature of this abuse goes to the core of the terms and conditions of Mrs Adams' employment. In the view of the Tribunal it was an implied term of Mrs Adams' employment that she would be free from unlawful discrimination. Mrs Adams was also entitled to expect that she would not suffer detrimentally as a result of discrimination. Mrs Adams was entitled to expect that she could carry out her duties without being treated less favourably than would a person of the opposite sex occupying her position and carrying out her duties. Mrs Adams' situation in the Rydalmere office made her particularly vulnerable to treatment by an overbearing manager such as Mr Baker. The Tribunal is satisfied that the First Respondent had no effective grievance procedure in place, to enable a person in the position of Mrs Adams to appeal for assistance, or to prevent her exposure to the sort of conduct about which she now complains. Had the First Respondent had effective procedures in place, the conduct of Mr Baker, not only to Mrs Adams but to the other staff of the First Respondent, who the Tribunal has heard suffered at the hands of Mr Baker, would have been stopped much earlier. Ultimately this conduct was brought to a conclusion by the summary dismissal of Mr Baker on 5 May 1995. By then it was far too late to protect Mrs Adams. Prior to Mrs Adams' complaint, the approach of the First Respondent to the adoption of practices and procedures to prevent or reduce incidents of discrimination of staff can be gained from the evidence of Mr Epskamp. He said that prior to December 1994 MTIA had sent material which dealt with issues of sexual harassment or sex discrimination, which was just thrown in the bin. The so-called direction to management which was handed out at the managers' meeting on 15 December 1994, in the opinion of the Tribunal, was grossly inadequate. Mr Baker alleged he took no specific action to convey the message of the direction, to his staff. It is understandable, although regrettable, that Mr Baker did not obtain any clear directive from this meeting. This direction can only be compared with the document that has so belatedly been issued by the First Respondent, in March or April 1995, after a consultation with the MTIA, to demonstrate the lack of understanding of the basic requirements and instruction to management and staff which an employer must disseminate if the employer is to prevent discrimination in its work place. Liability of the First Respondent One of the principles necessary to establish the application of sections 24 and 25 of the Act referred to in O'Callaghan v Loder (1984) EOC 92-023 is "that the person committing the act of harassment was either the employer of the Complainant or a person made liable by section 52 of the Act." In this inquiry, the perpetrator of the unlawful acts alleged by Mrs Adams, was Mr Baker. Section 52 of the Act provides: "It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act". Clearly, the acts complained of by Mrs Adams were committed by the Second Respondent, Mr Baker. As a result of the application of the principles enunciated in O'Callaghan v Loder, the First Respondent is also guilty of the unlawful act either by the application of section 52, or under section 53 of the Act. The Tribunal considers that the alleged acts of discrimination would not have occurred if the First Respondent had proper regard to its obligations to ensure the terms and conditions of employment of its employee were not breached by unlawful discriminatory acts. To the extent that the First Respondent failed in these obligations, in terms of section 52 of the Act, it caused or aided Mr Baker in the unlawful discriminatory acts against Mrs Adams, and the First Respondent is also guilty of an unlawful act. For the reasons mentioned later in relation to the application of section 53 of the Act to the First Respondent, the Tribunal finds that the First Respondent has failed in its obligations to Mrs Adams. The Tribunal considers that in order for section 52 of the Act to apply it is not necessary to establish an intention on the part of the employer to act in a manner rendered unlawful by section 52 of the Act. No evidence was adduced of the intention of First Respondent and the Tribunal considers that it is not a requirement of the Act, to do so. In relation to the application of section 53, the First Respondent has not satisfied the Tribunal that it did not, either expressly or by implication, not authorise its employee to do the unlawful acts. In this regard, the Tribunal refers to its earlier comments regarding the inadequacy of the attempts by the First Respondent to properly instruct its managers in relation to complaint or grievance procedures. Provided the Tribunal is satisfied that Mrs Adams has discharged the onus of proving the allegations which the Tribunal considers are discriminatory, the Tribunal is of the view that the First Respondent, as a result of the application of section 52 of the Act, and in the alternative, as a result of the application of section 53 of the Act, has acted unlawfully and in contravention of the Act. The Second Respondent, Mr Baker, also bears responsibility for the unlawful discrimination against Mrs Adams. Onus of Proof Finally, it is necessary for the Tribunal to be satisfied that Mrs Adams was subjected to the discriminatory acts which she alleges. In examining this question the Tribunal is required to apply a standard of proof applied in ordinary civil cases, that is that it be satisfied on the balance of probability that the alleged acts of discrimination took place, but in doing so is required to take into account the gravity of the allegations and the serious consequence to the Respondents following any adverse finding of the Tribunal. In these reasons the Tribunal has dealt at length with what it considers to be the relevant portions of the evidence presented to it. The Tribunal has illustrated the divergent nature of some of that evidence. The circumstances described by Mrs Adams, except in the case when Mr Kapur was present, took place when only she and Mr Baker were in the upstairs office. The Tribunal has referred to its hesitation in accepting the evidence of Mr Kapur when it is in conflict with Mrs Adams' evidence. It is probably more correct to say that there is no direct conflict in that evidence, as Mr Kapur was unable to recall events rather than deny that they took place. Mr Baker denied each of the alleged incidents described by Mrs Adams, except for incidents which he regarded as trivial. The Tribunal has no hesitation, where there is a conflict between Mr Baker's evidence and Mrs Adams' evidence, in preferring the evidence of Mrs Adams. As has already been stated, the Tribunal finds that Mr Baker misled the Tribunal about matters relevant to his dismissal by the First Respondent. The Tribunal regards the balance of his evidence as unreliable. The only witness that Mrs Adams called to support her allegations was the former employee of the First Respondent, Ms Liccardy. Although there were discrepancies between the evidence of Ms Liccardy and Mr Wishart, who was the state manager during the time of her employment, the Tribunal nevertheless prefers the evidence of Ms Liccardy. The Tribunal considers that her evidence indicates that prior to Mrs Adams' employment, Mr Baker had applied discriminatory conduct towards Ms Liccardy of a sexual nature. Although the evidence was inconclusive as to the reasons, there was an extraordinary series of short-term employment of females immediately preceding Mrs Adams' appointment, in the position that she occupied. The nature of this history must have had some influence with Mr Batkin, the managing director of the First Respondent, when considering the termination of Mr Baker's employment. The very nature of the letter from Mr Batkin to Mr Baker of 10 May 1995 setting out the reasons for that termination demonstrates that Mr Baker had a propensity for abuse of his staff and was a most overbearing and dictatorial manager. In isolation, this conclusion about Mr Baker's nature is not itself conclusive of unlawful discriminatory conduct towards Mrs Adams. It is, however, supportive of the formation by the Tribunal of a view that Mr Baker was quite capable of carrying out, towards Mrs Adams, the discriminatory conduct the subject of her complaint. The Tribunal is satisfied that the First Respondent had no adequate mechanism in place in its organisation which would facilitate either the prevention of unlawful discriminatory conduct against its staff or allow the staff, if subjected to discriminatory conduct, from knowing how or where to complain. When considering all this evidence and applying the standard of proof required of it, the Tribunal is satisfied, on the balance of probability, that each of the alleged discriminatory acts complained of by Mrs Adams did occur. It follows from what the Tribunal has already said that both the First Respondent and the Second Respondent are responsible for this unlawful discriminatory conduct. Tribunal Orders It is necessary then to consider what orders should be made, and in particular whether Mrs Adams, as was submitted on her behalf, should receive an award of damages to compensate her for the loss that she has suffered by reason of this unlawful conduct. It was submitted that Mrs Adams should receive a large compensatory award, based upon the nature of the unlawful discriminatory conduct, the circumstances in which it occurred, the lack of any adequate provision by the First Respondent which would have enabled Mrs Adams to complain and possibly have the First Respondent react to prevent recurrences of this conduct, and to the stress and anguish that Mrs Adams has suffered. The Tribunal agrees that Mrs Adams should be compensated for these disturbing experiences by way of an order for damages. Having regard to all the circumstances relating to the unlawful discriminatory conduct, the Tribunal considers that an appropriate amount to be awarded for general damages is $15,000. There is a question whether Mrs Adams is entitled to an award for special damages for the period that she was unemployed, if that is the right term to describe the period from 21 December 1994 to 23 January 1995, when Mrs Adams commenced her employment with Viking Office Products. It is difficult to determine the status of Mrs Adams' employment during this period. It was suggested that Mrs Adams had abandoned her employment after 21 December. This does not seem correct, as Mrs Adams claimed and received, from the First Respondent, workers' compensation for a period up to 29 January 1995. It should also be noted that the First Respondent employed a temporary secretary, Betty, during this period, on the basis that they were not certain when Mrs Adams would return. So it can be said that the First Respondent had not accepted Mrs Adams' abandonment of her employment, if indeed she had intended to abandon it. There is also a question whether Mrs Adams may be entitled to an award which has regard to any loss in rates of salary between the rate that she was receiving from the First Respondent and the rate of salary she is now receiving from Viking Office Products. No submission was made to the Tribunal concerning such loss, nor was any evidence given which would enable the Tribunal to assess it. The Tribunal therefore has not had regard to a loss of this nature. The Tribunal will order that Mrs Adams be paid by way of special damage such amount of salary that she would have earned between the period from 21 December 1994 to 23 January 1995 had she continued to be paid for that period of employment by the First Respondent. The Tribunal also notes that as Mrs Adams received workers' compensation for this period, she would be obliged to refund the amount of that compensation from the amount paid by way of special damage. The Tribunal has also considered whether an order for costs should be made in this matter. Although in the past the Tribunal has only awarded costs in favour of a successful claimant, if there are special circumstances which justify the making of an order, and accordingly have done so only on rare occasions, the Tribunal considers that when the amount of compensation awarded is moderate and likely to be eroded by the payment of costs to the legal representative of the Complainant, that the Tribunal should be more lenient in its approach to the special circumstances in which costs would be awarded. The Tribunal has had regard to such an approach in this case. It has also had regard to the position that, during the first two days of hearing, Mrs Adams was represented by her husband, a non legally qualified person. The Tribunal has referred to the extraordinary development concerning the failure to properly respond to the notice to produce prior years' income tax returns of Mrs Adams. The Tribunal doubts that this situation would have developed had Mrs Adams been represented by a legally experienced person. The Tribunal also found that Mr Adams' representation was not helpful. Mr Adams, by virtue of section 101(2) of the Act, is not entitled to receive fees for his representation. For the final two days of hearing and for the day on which submissions were made to the Tribunal, Mrs Adams was represented by Mr Kells, a qualified legal practitioner. Mr Kells was at a distinct disadvantage as he had not had the opportunity either to hear the evidence given on the first two days or to have available to him at that time the transcripts of the evidence of those two days. Towards the end of the second day, when the evidence was completed, the Tribunal expressed concern that Mr Kells wished to proceed immediately with submissions on behalf of Mrs Adams. The Tribunal felt, and so expressed to Mr Kells, that it would be preferable for him to delay until he had had the opportunity of considering the transcript of the first two days' evidence. Mr Kells advised the Tribunal that on the instructions of Mrs Adams he wished to proceed forthwith, which he proceeded to do, and he completed his submissions on the afternoon of the fourth day, and without the benefit of the first two days' transcript. The Tribunal considers that as a result, Mr Kells' submissions did not greatly assist the Tribunal, especially in an analysis of the evidence. For these reasons, the Tribunal declines to make an order for costs. 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.