Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61 Hearing dates: 19 October 2010, written submissions closed 5 November 2010 Decision date: 25 March 2011 Before: C Huntsman, Judicial Member N Hiffernan, Non Judicial Member Z Antonios, Non Judicial Member Decision: The application is dismissed Catchwords: Sexual harassment; victimisation. Legislation Cited: Sections 22 A, 20B, 50 Anti-DiscriminationAct 1977 Cases Cited: Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40;Dutt v Central Coast Area Health Service [2002] NSWADT 133;Coleman v Bentley [2002] NSWADT 87;Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44Nicholl and Nicholls v Director General, Department of Education And Training (No 2) [2009] ADTAP 20; Category: Principal judgment Parties: Patricia Linnell (Applicant) Seachem Australia Pty Ltd (Respondent) Representation: Counsel H Woods (Respondent) P Linnell (Applicant -In Person) File Number(s): 091114 reasons for decision Bac kground 1On 18 February 2009 the Applicant, Ms Linnell, made a complaint to the Anti-Discrimination Board of sexual harassment and victimisation. On 25 September 2009 Ms Linnell requested that the Anti-Discrimination Board refer her complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal (the Tribunal). Ms Linnell was employed by Seachem Australia Propriety Limited (Seachem), the Respondent. The Respondent is a small company, Seachem, and Mr Whitley is the managaing director. The Applicant alleges Seachem unlawfully sexually harassed her in her employment when, on 15 January 2009, a co-worker, Ms Humphreys, stated to a warehouse employee (in reference to Ms Linnell) that " Trish can go and suck someone's dick". Ms Linnell alleged that Seachem, the Respondent, unlawfully victimised her when, following her complaint about Ms Humphreys' conduct to the Director of Seachem, Mr Matthew Whiteley, no action was taken by Mr Whiteley against Ms Humphreys. She further alleges that Mr Whiteley then began to constantly unfairly criticise her work, which she claims culminated in the unlawful termination of her employment on 10 February 2009. The Respondent asserted to the Anti-Discrimination Board that the complaint was investigated and that as Ms Humphreys denied the allegation, and as there were no independent witnesses to corroborate the allegation, Mr Whiteley decided to issue a warning to Ms Humphreys, reminding her of the conditions of work expected of her. The Respondent's case is that Ms Linnell was terminated for poor work performance. The Respondent states that Ms Linnell's employment was terminated four weeks after the complaint was made to Mr Whiteley, and states that there is no causal connection with the complaint. The Applicant's case 2The Applicant's case was presented in oral and written form during the hearing. The Applicant provided detailed written statements and submissions. Written evidence included statements by the Applicant prepared for the current proceedings, a copy of her personnel file which had been provided by the Respondent's solicitor, a skills summary report in relation to a word 2000 test of March 2007, a security clearance for 1996, and the statement of Mr David Lewis. Mr Lewis did not give oral evidence in the proceedings nor was he available for cross-examination. The evidence is further discussed below. After the close of the evidence a timetable was set for receipt of further written submissions, further written submissions were received from the Applicant and considered by the Tribunal in determining this matter. The Respondent's case 3The Respondent provided evidence in written form, and by oral testimony of witnesses. Written statements were provided from Mr Matthew Whiteley and Ms Rebecca Humphreys - these witnesses also gave oral evidence and were available for cross-examination by the Applicant. Copies of print outs of e-mail communications said to have been made by the Applicant during her employment, and a price list, were also submitted into evidence through Mr Whiteley; and a number of documents were also annexed to his statement. Mr Whiteley is the director of the Respondent company, Seachem. Written submissions received from the Respondent, after the hearing, were also fully considered by the Tribunal. The evidence 4Ms Linnell was employed by the Respondent, starting work on 8 December 2008. The Applicant was subject to a three-month probationary period. Ms Linnell states that she was employed as office administrator, the Respondent states she was employed as an administrative assistant. Her employment was terminated by the Respondent on 10 February 2009, within the probationary period. Ms Linnell alleges that on 15 January 2009, co-worker, Ms Rebecca Humphreys, stated to another employee, Mr David Lewis, that "Trish can go and suck someone's dick". Ms Linnell states that Mr Lewis subsequently reported this comment to her. Ms Linnell states that she reported the comment to Mr Whiteley. Mr Whiteley agrees the comment was reported to him and says that he promptly discussed the matter with Ms Humphreys. Mr Whiteley reports that Ms Humphreys denied making the comment. Mr Whiteley states that he advised Ms Humphreys that, if there was truth to comment, he would be taking further action in seeking advice as to the status of her employment. He further states he reminded her of the standards he expected from employees of the organisation and that such conduct is against company policy, and warned her that it is conduct for which an employee may be terminated. Mr Whiteley notes in his written statement that the conduct is not acceptable conduct in the workplace at Seachem, and that this is so stated in the operations manual and also in Ms Humphreys' employment contract (this document was annexed to the statement of Mr Whiteley). 5The Applicant provided a statement by Mr Lewis about the comment alleged to have been made by Ms Humphreys. Given that the importance of this evidence the Tribunal will quote the statement in its entirety: "I, David Lewis of [address] do solemnly and sincerely declare "On 15 January 2009 when requesting receipt of purchase for the return and credit of weighing scales Rebecca Humphreys said Trish can go and suck someone's dick". 6Whilst the statement is in the form of a statutory declaration and is signed by Mr Lewis, Ms Linnell told the Tribunal that she was present when the statement was made and that Mr Lewis's signature was not witnessed by a justice of the peace or by a solicitor, but was witnessed by Mr Lewis's father. As such the statement cannot be considered to be a sworn statement and it is an unsworn written statement. 7In relation to the written statement of Mr David Lewis, Ms Linnell's evidence was that she discussed Mr Lewis's wish to give evidence in support of Ms Linnell's case with Mr Lewis, and cautioned him against making any false statement. She states that he completed his statement, on a statutory declaration form, in the presence of Ms Linnell and Mr Lewis's father. She states that Mr Lewis's father witnessed Mr Lewis's signature and that he is not a justice of the peace. Ms Linnell stated that she considered Mr Lewis to be vulnerable, and she made a decision that he should not give oral evidence during the current proceedings for this reason. The Tribunal advised Ms Linnell that Mr Lewis being unavailable for cross-examination may result in his statement being given less weight. Ms Linnell maintained her choice that Mr Lewis not be required to attend and give evidence due to his stated vulnerability. Ms Linnell did not specify the basis of Mr Lewis's vulnerability, however it is noted by the Tribunal that other evidence before the Tribunal indicates that Mr Lewis is no longer in the employ of the Respondent, and any vulnerability is therefore not due to continuing employment with the Respondent. 8Ms Humphreys provided a written statement dated 16 August 2010 which was an unsworn, signed statement, however in her sworn oral evidence during the hearing she adopted the written statement as true and correct. Ms Humphreys gave oral evidence by telephone (being absent from Sydney), and Ms Humphreys was questioned by Ms Linnell. In the written statement Ms Humphreys details her version of events on 15 January 2009. She says on that afternoon she purchased a set of scales as a temporary fix for the warehouse scales which had failed that day. They were not suitable so needed to be exchanged. Ms Humphreys says that the Applicant wanted to return the scales and Ms Humphreys said that the Applicant could not, because they were charged to Ms Humphreys' credit card and she needed to get them refunded to her card. Ms Humphreys further states: "Matthew[Whiteley] had later asked me to stay back for a meeting once everyone had left because of something Trish had said I had said. ...He said Trish had said that David had said to her that I had told him "Trish can go suck a dick"". I said that before I left David [Lewis] approached me when I was leaving the building and he said Trish was not happy that I was taking the scales back . I told David "where she can go". I did not say "Trish can go suck a dick." Matthew cautioned me that sort of comment is not acceptable in this company and to take this as a strong warning not to ever do this because it would jeopardise my employment. Trish never mentioned this to me. David never mentioned this to me. " 9In response to questions from Ms Linnell, Ms Humphreys stated that she prepared her written statement on her own, without assistance. Under cross-examination by the Applicant Ms Humphreys did not agree with the version of events put to her by the Applicant. Ms Linnell put to Ms Humphreys that she was a liar, and her evidence was not true, and Ms Humphreys rejected this. 10It was submitted to the Tribunal by the Respondent's lawyer that Mr Lewis's evidence should be given less weight than the evidence of Ms Humphreys - Ms Humphreys had prepared and signed her statement and was available for cross-examination, she had adopted her written statement during her sworn oral evidence to the Tribunal. By contrast Mr Lewis had provided a very brief written statement, which was not a sworn statement, he was not available for cross-examination, and his statement, being brief, provides no context through which his evidence can be well understood by the Tribunal. The Applicant submitted to the Tribunal that the evidence of the Applicant and Mr Lewis should be preferred and that the evidence of Mr Whiteley and Ms Humphreys should be rejected as they are liars. 11It was put to the Applicant by the Respondent's lawyer that when Mr Lewis reported the alleged comment to the Applicant she would have received it as an insult, and would not take it literally. Ms Linnell stated that she was offended, she was angry. It was put to Ms Linnell that she received the comment as if Ms Humphreys had said words to the effect of " Trish can go and get stuffed"- it was put to Ms Linnell that the words alleged to have been used by Ms Humphreys were an insult and were not something that Ms Linnell would take literally, that she took the words as an insult but not as sexual conduct. Ms Linnell stated that the words were more than just an insult, they were sexual abuse. Ms Linnell agreed that no similar comment had been made to her either before 15 January or after 15 January. She agreed that after referring the complaint to Mr Whiteley, she did not raise the complaint or refer to it again. 12It was the evidence of Mr Whiteley, which was agreed to by Ms Linnell, that there was no allegation of such a being made to Ms Linnell before 15 January, or after 15 January. Ms Linnell states that Mr Whiteley did not speak to her again about Ms Humphreys' comment after she reported the comment to Mr Whiteley. Mr Whiteley agrees that this was so. However he also states that Ms Linnell did not raise the issue with him again, and he did not perceive any difficulties in relationships between employees. Mr Whiteley states that there were no other witnesses to the alleged comment apart from Mr Lewis and Ms Humphreys, and given that Ms Humphreys denial, he was not able to ascertain that the complaint was substantiated. However he found it appropriate to caution Ms Humphreys that such conduct was not acceptable in the workplace. 13Much evidence was given in the proceedings about the Applicant's work performance, both by the Applicant and the Respondent's witnesses. The Applicant claimed that the Respondent treated her differently, after she made the complaint about Ms Humphreys, and this culminated in the termination of her employment. The Respondent's case is that Mr Whiteley did not treat the Applicant differently, rather, Mr Whiteley was discussing the Applicant's performance of workplace duties with the Applicant, from the time of the commencement of her employment, and that her employment was terminated for poor performance. All of the evidence of the parties about the workplace will not be summarised in these written reasons for decision: the Respondent asserts poor performance of workplace duties by the Applicant, the Applicant denies this and asserts she was victimised for complaining about sexual harassment. On many points the evidence conflicts. The Applicant was cross-examined by the Respondent's lawyers about these issues, and she also cross examined the Respondent's witnesses. The evidence will be referred to in these written reasons for decision, and reference may be had to written documents on the Tribunal file submitted by the parties during the proceedings. 14During cross-examination by the Respondent's lawyer Ms Linnell agreed that during the second interview for the employment position with the Respondent, she was advised by Mr Whiteley of his medical condition (multiple sclerosis) and was informed that he had particular procedures and practices, in place in the workplace, with which employees were required to conform, which assisted him to perform his role given his condition. She agreed that she was advised by Mr Whiteley that it made it easier, because of his condition, if everyone strictly complied with these practices. It was put to Ms Linnell that from the outset Mr Whiteley had to talk to Ms Linnell because of her failure to comply -Ms Linnell stated that she did not recall this. 15It was put to Ms Linnell that on commencing work she was shown the main shared directory on the computer, where the procedures manual of the workplace, leave forms, and day-to-day working forms, order forms and the like, could be accessed. Ms Linnell stated she did not recall a shared directory. Ms Linnell was also questioned about her manner of e-mailing the Respondent's clients, it was put to her that proper process was for e-mails to be sent out under a sales e-mail address yet despite being repeatedly advised of this she continued to send out e-mails on her personal e-mail address. Ms Linnell states that she had to do this as she could not access the general e-mail address and could only access her own personal address. Ms Linnell agreed that it was probably a policy that e-mails to clients were to be sent from a central address, however she maintained that in her own case given the lack of access to this e-mail address she could not do this. It was also put to Ms Linnell that invoices were sent out under two company names, being Inbound Pet Supplies, or Seachem Australia, and she agreed she was aware of these two names. It was put to Ms Linnell that she recorded incorrect details on the invoices, in relation to the company names, and she responded that this was never explained to her. It was put to Ms Linnell that it was raised with her by Mr Whiteley on several occasions, before January 2009, that she must refer all invoices to Mr Whiteley, in draft form, before sending the invoices out to clients, and she agreed she was so advised. It was put Ms Linnell that she did not do as required in relation to invoices, which she denied. 16Ms Linnell was also questioned about her actions in sending out old pricelists to clients. It was put to Ms Linnell that the shared directory on the computer had the pricelists, and the most recent pricelist was dated August 08, yet she sent an old pricelist dated February 08, to clients. It was put to Ms Linnell that despite being advised that she had sent out an old pricelist, she repeated this action by again sending out an old pricelists to clients. She stated that she would not have done so . It was put to Ms Linnell that it was clear from the pricelists in the directory, which was the most recent pricelist, and she stated that the only pricelist in the directory was the one she sent out to clients. She also disagreed that the pricelist was in the form of an Excel document, saying it was a PDF document. 17The legal representative for the Respondent put to Ms Linnell that there were discussions, from the time Ms Linnell commenced employment until the time when her employment ended, about her work performance, and Ms Linnell agreed. It was put to Ms Linnell that there was no change in the way in Mr Whiteley dealt with her from 15 January 2009 compared to prior to that time. Ms Linnell maintained that there had been such a change.. Ms Linnell was referred to Mr Whiteley's evidence that prior to Christmas she was required to send out a Christmas discount schedule to clients and she agreed. Ms Linnell agreed that when she sent the e-mail to all customers she identified on the e-mail all recipients and thereby sent out to all recipients a list of all the Respondent's customers. Ms Linnell agreed that Mr Whiteley spoke to her about this error. She stated this would have occurred in December, or early January on her return from Christmas leave. She agreed that a personal e-mail account was then taken away from her. However she disagreed that she had been informed that she should not be e-mailing clients on a personal e-mail document. 18Ms Linnell agreed with the suggestion that she had a general concern as to the way the business was being run, and that she thought it should be run differently. She agreed she had detailed some of her concerns in relation to the way the business was run in her written statement, including referring to a "lack of professionalism". It was put to Ms Linnell that on the day before her employment was terminated she had left the office at between 2 and 3 pm, not returning until after 5 pm. Ms Linnell stated she left the office at about 3:30 pm, to take another employee to a medical appointment at 3:45 pm, and the appointment location was 10 minutes away from their place of employment, and she returned to the office at around 5 pm. It was suggested to Ms Linnell that she did not need to stay with the employee for the whole medical appointment and she stated she was concerned to stay. It was put to Ms Linnell that the difficulty presented by her behaviour, for the business, was that with the absence of Ms Linnell and the other employee, there was no one to answer phone calls at the business, particularly given Mr Whiteley's absence at that time which was a matter which was known to Ms Linnell. Ms Linnell responded that Ms Humphreys could answer telephones, but agreed when it was put to her that, as a sales representative, Ms Humphreys did not have that responsibility. It was put to Ms Linnell that the following morning Mr Whiteley spoke to her and informed her that he'd raised issues regarding her performance on a number of occasions, and that he was not satisfied that she had left the office for the period of time on the preceding day, and that she was then advised that her employment was terminated. Ms Linnell agreed with this account. 19In relation to the personnel file Mr Whiteley stated that he made entries on the personnel log for each employee in the computer, as regularly as he was able to. Sometimes he was too busy to do so. Ms Linnell referred to the fact that not all complaints about her performance which had been made by Mr Whiteley in the proceedings, were entered in the personnel log. In her submissions she stated that there was no evidence presented by the Respondent to support the allegations of poor performance made by Mr Whiteley in his written statement. She further stated that 67 per cent of the entries on the personnel file, were made after she had reported Ms Humphreys' sexual abuse comment to Mr Whiteley. Ms Linnell stated that the Respondent's witnesses' words were dishonest and her evidence should be preferred. She maintained that she was sexually harassed by the comment which Ms Humphreys made to Mr Lewis, and which was reported to her by Mr Lewis, and that she was victimised because of her complaint about Ms Humphreys' comment and was terminated from her employment for this reason. 20Ms Linnell maintained that the version of events detailed by her in her written statement provided to the Tribunal for these proceedings, was the true and accurate account of what occurred during her employment. She maintained that she was victimised due to complaining about Ms Humphreys' conduct, and maintained that she was not terminated due to any performance issues. She states that Mr Whiteley is lying and Ms Humphreys is lying. She maintains that she is honest in her account and her evidence, and submits that her version of events should be accepted by the Tribunal. FINDINGS - DISCUSSION OF LAW AND EVIDENCE 21The Applicant's case is that she suffered sexual harassment in the workplace and also that she was victimised for having complained about the sexual harassment. The Tribunal will firstly consider the claim of sexual harassment. Sexual harassment 22The Applicant's case is that she was subject to sexual harassment in the workplace and the conduct which constituted the sexual harassment was the statement which she asserts was made by Ms Humphreys on 15 January 2009. Was the alleged comment by Ms Humphreys made? 23Ms Linnell, the Applicant, cannot give direct evidence that Ms Humphreys made the comment as alleged, as her evidence is that the comment was not made in her presence. She relies on the statement of Mr David Lewis that the comment was made. She further relies on her own evidence about what was occurring prior to the alleged comment being made by Ms Humphreys, and her own evidence that Mr Lewis reported the comment to her. Mr David Lewis has given a very brief written statement - that statement does not indicate any context, there is no detail about the environment in which the statement was made, and no detail about who was present apart from Mr David Lewis and Ms Humphreys. In her written statement, supported by her oral evidence during the hearing, Ms Humphreys denies making the comment which is alleged. 24The Applicant bears the onus of proof to establish that she was subject to sexual harassment, such onus of proof being on the balance of probabilities. To establish her claim of sexual harassment she needs to establish, on the evidence, on the balance of probabilities, that Ms Humphreys made the statement which is alleged to constitute the sexual harassment. Ms Linnell gave evidence that the sexual harassment was this statement by Ms Humphreys - she gave evidence that after the time the statement was made there were no further comments made to her. She did not assert in her evidence continuing statements or harassment of a sexual nature, her complaint of sexual harassment is based on this particular comment by Ms Humphreys, and the particular words used by Ms Humphreys. In the present case the Applicant needs to establish that Ms Humphreys made the comment alleged and used the particular words. Ms Humphreys denies using the particular words and making the comment as alleged. 25The Tribunal, in assessing the Applicant's claim of sexual harassment, needs to be satisfied that the Applicant has established, on the evidence, that the behaviour or conduct, namely the comment by Ms Humphreys, which constitutes the sexual harassment, did occur. If satisfied that the comment did occur then the Tribunal needs to consider whether the comment constituted sexual harassment. The Tribunal has firstly considered whether the Applicant has established, on the evidence, that the statement was made by Ms Humphreys. 26An Applicant bears the onus of proving the case to the requisite standard of proof, being the balance of probabilities. Generally, where there are two competing versions of an event given by witnesses, and where the Tribunal has no basis for preferring the evidence of the Applicant over the evidence to the contrary given by other witness, then an Applicant, generally speaking, may fail to establish their case, given that the onus of proof is on the Applicant. 27In the present case, the only evidence to establish that the statement was made is the evidence of Mr David Lewis that he heard the alleged comment by Ms Humphreys, and the evidence of the Applicant, Ms Linnell, that Mr David Lewis reported the comment to her soon after it was made. Ms Humphreys denies that the comment was made. Whilst the Applicant put to Ms Humphreys during the proceedings that her testimony was false and that she was a liar, (suggestions which Ms Humphreys rejected) on the evidence the Tribunal had no basis for finding that Ms Humphreys' evidence lacked credibility -her evidence was not inconsistent so that it appeared to be unreliable, nor was any evidence presented which established that Ms Humphreys' evidence, which included sworn oral evidence in the hearing, lacked credibility. 28Further, for the Applicant who has the onus of proof to establish, on the evidence, that the comment was made, where there are two conflicting versions (being the version of Mr Lewis and the version of Ms Humphreys) the Tribunal must have a basis to prefer the version of Mr Lewis over the version of Ms Humphreys. The Tribunal needs to weigh the evidence. In relation to the evidence of Mr David Lewis he provided a very brief written statement which was an unsworn statement (it was not provided in the form of a statutory declaration or an affidavit) nor did he give sworn oral evidence during the proceedings, nor was he available for cross-examination whereby his evidence could be tested. Ordinarily, a written statement which is not sworn attracts less weight than a sworn statement; and a written statement where the maker of the statement is not available for cross-examination, will attract less weight than a written statement where the maker of the statement provides oral evidence in support of the statement and is available for cross-examination. In the present case, Ms Humphreys gave sworn oral evidence in support of her written statement and was available for cross-examination, and maintained her version of the event. As such the evidence of Ms Humphreys, being sworn evidence tested by cross-examination, attracts more weight than the unsworn statement of Mr Lewis who did not give oral evidence and was not subjected to cross-examination. On the evidence the Tribunal had no basis for rejecting Ms Humphreys' evidence as inconsistent, or otherwise unreliable, or lacking in credibility, despite the Applicant's assertions that Ms Humphreys is a liar, no lies or credibility issues were established during the proceedings. Given that the Tribunal has no basis for preferring the evidence of Mr David Lewis over the evidence of Ms Humphreys, and given that the Applicant has the onus of proof in relation to her complaint of sexual harassment, then the Tribunal finds that the Applicant has not established, to the required standard of proof, being the balance of probabilities, that Ms Humphreys made the comment as alleged. 29Given this finding the Tribunal did not need to determine whether the conduct which the Applicant asserts constituted sexual harassment (being the statement which she asserts Ms Humphreys made), would in fact constitute sexual harassment under the Act. However, the Tribunal observes that even if the Tribunal had accepted that the comment was made by Ms Humphreys, as alleged by the Applicant (and the Tribunal was not so satisfied), the Tribunal would not have been satisfied that the Applicant has established that the harassing conduct was conduct of a sexual nature. 30The issue of sexual harassment has been the subject of many decisions by the Tribunal. In Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40 the Appeal Panel of the Tribunal stated: 2 Ms Carter lodged a complaint with the President of the Anti-Discrimination Board under the Anti-Discrimination Act 1977 (the Act). The President referred the complaint to the Tribunal characterising it as a complaint of sexual harassment and sex discrimination . Prior to 1997, a person could only substantiate a complaint of sexual harassment if the conduct breached the provisions relating to sex discrimination . The sex discrimination provisions make it unlawful for an employer to discriminate against an employee on the ground of sex in relation to the terms and conditions which the employer affords to the employee. Sex discrimination occurs where an employer treats the person less favourably than he or she treats or would have treated a person of the opposite sex in the same or similar circumstances. In O'Callaghan v Loder [1983] 3 NSWLR 89 Judge Mathews DCJ held that the creation of a hostile working environment constitutes differential treatment in relation to the terms or conditions of employment. 3 Specific provisions making sexual harassment unlawful were introduced in 1997. Section 22B of the Act makes it unlawful for an employer (in this case Mr Fitzgerald) to sexually harass an employee. ... 4 Ms Carter claimed that Mr Fitzgerald's conduct came within the definition of sexual harassment in s 22A(a). 31The Anti-Discrimination Act 1977 NSW (the Act) provides at s22A: 22AMeaning of "sexual harassment" For the purposes of this Part, a person sexually harasses another person if: (a)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b)the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. 32In the case of Coleman v Bentley [2002] NSWADT 87 (28 May 2002) the Tribunal observed: 25 The New South Wales Equal Opportunity Tribunal has observed that "a person is sexually harassed if he or she is subjected to unsolicited and unwelcome sexual conduct by a person who stands in a position of power in relation to him or her": O'Callaghan v Loder (No 2) [1983] 3 NSWLR 89 at 92. This general concept has been developed into a statutory formula to set the parameters of the behaviour or actions of one person towards another which come within the definition of sexual harassment. 26 As the Federal Court has observed: Unwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment. The word "harass" implies the instillation of fear or the infliction of damage, as is indicated by the definition of the term in the Macquarie Dictionary: 1. To trouble by repeated attacks, incursions, etc. as in war or hostilities; harry; raid; 2. To disturb persistently; torment, as with troubles, cares, etc. (Hall v A & A Sheiban Pty Ltd [1989] FCA 72 ; (1989) 85 ALR 503 at 531). 27 The legislative formula for proscribing sexual harassment has been described as: Only striking at conduct that is an abuse of power or influence which an employer has over the career prospects or working conditions of an employee. The section does not make unlawful, per se, sexual advances made by an employer to an employee; nor does it seek to proscribe the acceptance of such advances by the employee. In other words the sub-section is not intending to change the tide of human affairs. It is the demonstration of the preparedness to use the position of power and influence over the employee which is at the core of the conduct rendered unlawful. (Spencer v Dowling (1996) EOC [92-851 at 79,325]. Conduct Constituting Sexual Harassment 28 There has been much consideration of the various statutory formula of sexual harassment by Tribunals and courts in recent years. Some of the conduct and comments which has been found to be sexual harassment is: writing a letter containing a declaration of love and implicit proposal for sexual intimacy including marriage and children: Spencer v Dowling (1996) EOC [92-851], intimate pre-employment interview questions about the Applicant's sexual life: Hall v A & A Sheiban Pty Ltd [1989] FCA 72 ; (1989) 85 ALR 503 , sexually explicit comments written on walls and equipment using her name, lewd magazines and posters with nude and partially clad women throughout the workplace, derogatory sexual comments made to her and about her in her hearing: Hopper v Mount Isa Mines Ltd (1997) EOC [92-879]. sexually explicit comments about a previous employee during a pre-employment interview, providing money to purchase underwear, requiring lingerie to be bought, referring to her breasts while making a comment about "like to chew on those", physical touching, offers of massage: B, C and D v Stratton (1997) EOC [92-883], pinching her bottom, offers of massage and massaging, comments of sexual nature about himself and her sexual life: Tulk v Moore (1997) EOC [92-870], asking personal questions about her sex life, tales of his sex life, touching and licking her leg, rubbing his genital area and making comments about "coming" and making sexually explicit requests on the type of clothing he wanted her to wear: Phillips v Leisure Coast Removals Pty Ltd (1997) EOC [92-899]. 33In the present case the Tribunal would have had difficulty finding that the conduct alleged to have been suffered by Ms Linnell - namely, that Ms Humphreys said to Mr Lewis in Ms Linnell's absence "Trish can go and suck someone's dick" was conduct of a sexual nature in terms of the sexual harassment definition in s22A of the Act. Whilst the Tribunal may accept Ms Linnell's evidence that she found the words, when they were reported to her by Mr Lewis, to be offensive, it is not all offensive conduct which will amount to sexual harassment under the Act. The Tribunal notes that the alleged comment was a singular comment, and there is no evidence of repeated behaviour, so that one could consider the workplace was poisoned by an environment of harassment. This is a case where it is alleged that one comment was made. The Tribunal considers that the comment was in the nature of verbal abuse, made in the Applicant's absence, and was not conduct of a sexual nature in terms of the sexual harassment provisions in section 22 A of the Act. However, the Tribunal did not have to finally determine whether the conduct constituted sexual harassment of the Applicant, given the Tribunal's finding was not satisfied that Ms Humphreys made the comment as alleged by the Applicant. Victimisation 34The Anti-Discrimination Act 1977 NSW (the Act) provides at s50: 50 Victimisation (1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 35In interpreting the requirements of s50 of the Act, the Tribunal agrees with the statement of the Tribunal in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at 235 - The approach taken by this Tribunal to assessing evidence in victimisation complaints is set out in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at p 78,986 (see D -v- Berkeley Challenge and the decisions cited there at para 99). We see the steps as logically proceeding in this order: a Tribunal will ask whether an Applicant did or was suspected of doing one of the acts in s50(1), and whether the Respondent did anything which caused detriment to the Applicant. If the answer to both is `yes', the Tribunal will then ask whether there is a causal link between the two: did Respondent do that thing on the ground that the Applicant did or was suspected of doing one of the acts in s50(1)? 36In the present case the Tribunal must decide firstly whether Ms Linnell did or was suspected of doing one of the acts in s50(1). The Tribunal finds on the evidence that Ms Linnell reported the alleged statement by Ms Humphries, to her employer on 15 January 2010. Ms Linnell maintains that in making this report she was reporting an allegation that Ms Humphreys had committed an act which would amount to a contravention of the Anti-Discrimination Act 1977 (the Act), being an act of sexual harassment. As such, the Tribunal must be satisfied that in making this report Ms Linnell alleged that Ms Humphreys has committed an act which would amount to a contravention of the Act. As noted above, to establish a claim of victimisation, the Applicant must also establish that she suffered a detriment and she must also establish causation. 37The Tribunal considered whether Ms Linnell suffered a detriment, this is an essential component of a victimisation claim. An Applicant must establish that a detriment was suffered, and a real reason for suffering the detriment, was the making of the complaint by the Applicant (or taking action as specified in section 50 (1) of the Act). In the present case the Applicant states that she complained to her employer about Ms Humphreys' conduct, and that after this time she suffered different treatment which ultimately culminated in termination of her employment. In order to establish detriment, a complainant of victimisation must have been "placed under a disadvantage as to a matter of substance, as distinct from a trivial matter": Borg v Commissioner, Department of Corrective Services &Anor [2002] NSWADT 42 ; Hunt v Rail Corporation of New South Wales [2007] NSW ADT 152 at 182. The detriment suffered must be "real and not trivial". Whether something constitutes a detriment must be determined objectively and not subjectively: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41] . In the case of Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 the Tribunal stated: The elements of victimisation can be described as a four-fold requirement. Firstly, the Respondent must have caused the complainant to undergo or experience something. Secondly, the complainant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the complainant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the Respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith. That defence is not relied on in this case. ...... ....The detriment suffered by the complainant must be real and not trivial. Whether something constitutes a detriment must be determined objectively and not subjectively. In other words, it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the Respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment. 38The Applicant, states that she suffered a detriment by being treated differently in the workplace after making the complaint, and also by having her employment terminated. The Applicant also claims in her complaint to the President of the Anti-Discrimination Board, that she suffered victimisation because the Respondent failed to respond to her complaint. The evidence of the Applicant is that she suffered no further similar incidences after 15 January 2009, there was the one incident being the alleged statement made by Ms Humphreys on 15 January 2009. It is therefore not asserted by the Applicant that inaction by the Respondent allowed harassing behaviour to continue in the workplace. The evidence of Mr Whiteley, for the Respondent, is that he responded to the complaint by discussing the alleged behaviour with Ms Humphreys, and cautioning her that such behaviour would not be tolerated. No further action, apart from this caution, was taken as Ms Humphreys denied the allegation. The Tribunal is not satisfied that the Applicant has established that the Respondent failed to respond to her complaint; and further is not satisfied that she has established that she suffered a detriment for reason of any such inaction. The Tribunal could not be satisfied that any detriment was suffered for such reason, as the Applicant states that there were no further incidences of alleged harassment after she reported the incident to Mr Whiteley. As such, there was no evidence on which a finding could be based that the Applicant suffered detriment on the basis of any inaction by the Respondent, as she suffered no further incidents of alleged harassment after making her report about the behaviour of Ms Humphreys to Mr Whiteley. 39The Tribunal observes that being subjected to different treatment in the workplace after making a complaint, and being terminated from employment for such reason, would ordinarily be considered to constitute a detriment. However the Tribunal must also be satisfied of causation. The Tribunal must be satisfied that the reporting of Ms Humphreys' alleged conduct by Ms Linnell to Mr Whiteley, was a real, genuine or true reason that she was subjected to a detriment. The causation test for victimisation claims was subject of considerable discussion by the Appeal Panel of the Tribunal in the case of Nicholl and Nicholls v Director General, Department of Education And Training (No 2) [2009] ADTAP 20. In that case it was stated: 37 Conclusion. Throughout its reasons, the Tribunal applied the 'but for' test and/or the substantial, dominant or main reason test. As we see it, the application of those tests constituted an error. The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. 40In the present case the Applicant has no direct evidence that a reason for the decision to terminate her employment was her reporting of Ms Humphreys' alleged comment. Generally, Ms Linnell's case relies on the Tribunal drawing inferences from the context of events, timing of events, as to the reason for the decision to terminate Ms Linnell's employment . Relevant considerations, where a case requires the Tribunal to draw inferences, were subject of discussion in the case of Chi v Technical and Further Education Commission (no 3) [2009] NSWADT 271 (Chi's case): 85 The exercise of drawing inferences has been discussed the Tribunal in numerous decisions: for example, Hafez v Warilla Women's Refuge Ltd &Ors [1997] NSWEOT (at page 5 of 35); A v B [1997] NSWEOT (at page 17 of 19); Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 ; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] . As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 ; (2000) 49 NSWLR 262 , identify the following considerations in the drawing of inferences of discrimination: (a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts; (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence. 86 In our opinion, such considerations are equally applicable to drawing inferences of victimisation. In the instant case, of particular pertinence is the consideration that an inference cannot be made where more probable and innocent explanations are available on the evidence. 41The issue of the difficulties for an Applicant to establish evidence to support his or her case was discussed by the Tribunal in detail in the case of: Dutt v Central Coast Area Health Service [2002] NSWADT 133: There is no direct evidence before the Tribunal that these decisions of the Club were based on the Applicant's race or sex or both. The Applicant's case is based on circumstantial evidence. This is not unusual. As observed by the Western Australian Equal Opportunity Commission in Alone State Housing Commission ("Homewest") (1992) EOC 92-392 at p. 78,789, racial discrimination, of its very nature, is "... ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial. " The Tribunal recognises the difficulty faced by an Applicant in discharging the onus of proof in the absence of direct and positive evidence that the treatment suffered by the Applicant was on the ground of the Applicant's race or gender. In cases where there is no direct evidence of the discrimination, the Applicant may use in support inferences drawn from the primary facts: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Khanna v Ministry of Defence(1981) I.C.R. ...... ....Difficulty in obtaining evidence 71 When relying on inference an Applicant must identify the evidence on which the inference can reasonably be based. A particular difficulty is, as Thornton among others has observed, that the Respondent invariably controls the information necessary to the Applicant's case (Liberal Promise at p182). 72 The exercise is made even more problematic when the conduct in relation to which an inference is to be drawn took place in the context of employment. In Thornton's view (Thornton M., `Revisiting Race' in Racial Discrimination Act 1975 : A Review, Human Rights and Equal Opportunity Commission, 1995 p81, at p90): . . . employment complaints . . . are notoriously difficult, for the alleged racism quickly becomes interwoven with bona fide considerations of merit, including formal qualifications, experience, workplace practices and relations with one's peers. Unless the conduct is unequivocal, such as including a written component, the burden of proof is virtually insuperable. 73 Thornton's view (`Revisiting Race' at p92) is that [t]he mere articulation of a rational explanation [by the Respondent] can carry a probative weight which is difficult for the complainant to rebut . . . Unless the evidence is incontrovertible, and it rarely is in employment complaints, the Respondent is able to raise a bona fide explanation for the less favourable treatment and confound the proof problematic. The racist narrative told by the complainant then becomes inextricably intertwined with the Respondent's rational explanation for subjecting the complainant to the alleged detriment. It is therefore not surprising that the preponderance of [race complaints in employment] were dismissed because of the complainant's failure to satisfy the burden of proof. 74 This difficulty for an Applicant has long been acknowledged in decisions in this Tribunal (see, eg, Carberry v Culburra Bowling & Recreation Club Limited [1997] NSWEOT at p 3) and in the Federal jurisdiction. In Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia &Ors [1989] HREOCA 3 Einfeld J said at p 11 . . . racial discrimination will mostly if not always have to be proved inferentially or circumstantially. Thus evidence of discrimination will often be solely in the hands or minds of the Respondents, and be difficult for complainants to elicit in any credible form. Absence of evidence 82 When there is no evidence to support an inference that race was a ground, particularly when there is evidence giving rise to other, equally plausible inferences, an Applicant is left with nothing more than their belief that their race was a ground. In terms of legal proof, with which the Tribunal is necessarily concerned, such a belief is insufficient to establish unlawful discrimination.... .....Evidence supporting an inference of other grounds 87 There is extensive evidence in this matter of plausible, and at times probable, grounds other than Dr Dutt's race for less favourable treatment of Dr Dutt. The fact that there could be grounds other than race for the conduct does not preclude Dr Dutt's race being also a ground. But the existence of plausible and probable other grounds makes it extremely difficult for Dr Dutt to establish, on inference alone, that his race was more probably than not also a ground for the conduct. 42The Tribunal has had regard to the difficulties which an Applicant may have in establishing their case of discrimination/harassment on the grounds of sex, and of victimisation following a complaint about the discrimination/harassment, as discussed above. However, it is clear that where the Tribunal is required to draw an inference to be satisfied of the reasons that a Respondent took a certain action, the Tribunal should not draw such an inference where more innocent and plausible explanations are available on the evidence. In the present case Ms Linnell does not have direct evidence that a reason her employment was terminated was because of her complaint to Mr Whiteley about the conduct of Ms Humphreys on 15 November 2009. Ms Linnell's case is that after making that complaint she was subject to different treatment in the workplace and that after 15 January 2009 Mr Whiteley continually criticised her conduct leading up to termination of her employment. She asks the Tribunal to draw an inference from her evidence that she was subjected to different treatment, that a reason her employment was terminated was her complaint about Ms Humphreys' conduct (conduct which she characterises as sexual harassment). 43The evidence of the Respondent is that from almost the commencement of her employment, the Respondent was required to talk with Ms Linnell about her poor performance. During cross-examination Ms Linnell agreed that she had been spoken to about her performance from the commencement of her employment until when her employment was terminated. She maintained however that she was treated differently after 15 January 2009, and submitted that her personnel file showed that 67 per cent of recorded issues occurred after 15 January 2009. The personnel file clearly indicates issues in December 2008 and January 2009, which were also subject of oral evidence during the hearing by Mr Whiteley. It is quite clear that Mr Whiteley discussed performance issues with Ms Linnell before 15 January 2009. On the evidence the Tribunal is not satisfied that after 15 January 2009 Ms Linnell was subject to different treatment by Mr Whiteley, rather, it appears to the Tribunal that the process of Mr Whiteley discussing performance issues with Ms Linnell occurred both before 15 January 2009 and after 15 January 2009. 44The Tribunal is not satisfied that Ms Linnell has established that she was treated differently after 15 January 2009. However, it is clear that the Respondent did terminate Ms Linnell's employment on 10 February 2009. The Tribunal needs to consider whether a reason that Ms Linnell's employment was terminated was her complaint to Mr Whiteley about the alleged comment made by Ms Humphreys. The Tribunal notes the evidence of Ms Linnell that she had been spoken to about performance issues from the commencement of her employment up until termination of her employment. The evidence of Mr Whiteley was that there were a number of issues relating to Ms Linnell's performance of her job, including use of incorrect e-mail account, failing to show draft invoices to Mr Whiteley as required, disclosing all recipients when emailing out the Christmas promotion thereby disclosing client details, and other issues, including leaving the office unattended and 9 February 2009. Mr Whiteley states that on 10 February 2009 he undertook a performance review and terminated Ms Linnell employment within the probation period, giving one weeks' notice. 45It was established on the evidence that Ms Linnell was using the wrong e-mail account although she says she has no had no choice about this as she could not access the other account. It was also not in dispute that she had sent to clients old price lists, although she maintains that there was only the one price list available. Mr Whiteley states that all the price lists were contained on the computer shared directory which contained all working documents available to all employees. For her part Ms Linnell states she was unaware that there was a shared directory containing such documents. Whilst Ms Linnell stated that Mr Whiteley is a liar, and submitted to the Tribunal that his evidence was false and her evidence should be preferred, on the evidence there was no basis upon which the Tribunal could reject his evidence. The credibility and reliability of his evidence was not impugned during the proceedings. The Tribunal has not made a finding that all of Mr Whiteley's evidence, which contained considerable detail, was established, rather, the Tribunal has no basis for rejecting Mr Whiteley's evidence that he had concerns about Ms Linnell's performance and discussed these concerns with her during the period of her employment. That this occurred during her employment was agreed to by Ms Linnell during her oral evidence to the Tribunal. Whilst Ms Linnell disagreed at times in her evidence that specific conversations about her performance occurred, she did agree that she had been spoken to about her performance from the commencement of her employment until the time her employment was terminated. As detailed above in these written reasons the decision, while there were some differences in the evidence of Mr Whiteley and Ms Linnell about some of the employment issues, what was established was that Mr Whiteley was concerned about her performance and had discussions with Ms Linnell about this throughout her employment with the Respondent. The Tribunal also observes that the Applicant agrees that a number of issues did occur during her employment as detailed by the Respondent - such as e-mails on wrong e-mail addresses, sending out recipient details on a group e-mail, and leaving the office on 9 February 2009 - however the Applicant advances explanations that her behaviour was justified/excusable. Mr Whiteley's evidence is that he considered the Applicant's performance of her work duties to be of concern. 46In the context of the evidence overall in this matter the Tribunal had no basis to reject the evidence of Mr Whiteley that he had concerns about Ms Linnell's performance of her duties. That being so, then an innocent and plausible explanation available on the evidence, was that a real reason that Ms Linnell's employment was terminated, was due to Mr Whiteley's concerns about the performance of her role, and so her employment was terminated during the probationary period. Given this innocent and plausible explanation for termination of her employment, the Tribunal could not draw an inference, on the evidence presented in this matter, that a reason for termination of Ms Linnell's employment was her reporting of Ms Humphreys' alleged statement on 15 January 2009. 47As such the Tribunal is not satisfied that Ms Linnell has established, on the evidence, that a real reason, or a genuine and true reason, for the termination of her employment, was her reporting of the alleged comment by Ms Humphreys to her employer. As such the Tribunal is not satisfied that Ms Linnell has established the element of causation in relation to any detriment suffered. 48As the Tribunal finds that Ms Linnell, the Applicant, has not established causation in relation to her victimisation claim, then the victimisation claim fails. 49For reasons discussed above the Tribunal was not satisfied that the Applicant had established, on the evidence, to the requisite standard of proof, being the balance of probabilities, that she suffered sexual harassment and victimisation during her employment with the Respondent. The Tribunal accordingly dismissed the application ********** 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. Decision last updated: 25 March 2011