Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Giovanetti v State of New South Wales (Department of TAFE) [2011] NSWADT 195 Hearing dates: 16,17 August 2010 Decision date: 12 August 2011 Jurisdiction: Equal Opportunity Division Before: R Perrignon, Judicial member N Hiffernan , Non-judicial member A Lowe , Non-judicial member Decision: 1. The complaints of sexual harassment against each of the Second, Third and Fourth respondents are dismissed. 2. The complaint of complicity against the First Respondent is dismissed. Catchwords: Complaints of sexual harassment at educational institution - s22A and s22E - whether acts of sexual harassment occurred Complaint of permitting sexual harassment - s52 - whether TAFE permitted acts of sexual harassment by students, if they occurred Legislation Cited: Anti-Discrimination Act 1977 Category: Principal judgment Parties: Benjamin Giovanetti (Applicant) TAFE NSW (First Respondent) Timothy Massie (Second Respondent) Ashley Wayne Morcom (Third Respondent) Travis Liam Mahoney (Fourth Respondent) Representation: Counsel P Griffin,(Respondent) F Montil (Applicant, agent) Hicksons Lawyers (Respondent) File Number(s): 091015 Reasons for Decision 1From September 2007 to March 2008, the applicant Mr Giovanetti was a student attending the Certificate III course in Commercial Cookery at the Wollongbar campus of TAFE. On 8 April 2008, he complained to the Anti-Discrimination Board that, while there, he had been sexually harassed by three of his fellow students who are the personal respondents in these proceedings, contrary to section 22E of the Anti-Discrimination Act 1977 . He also complained that the first respondent, TAFE, had permitted that harassment, in breach of section 52 of the Act. 2These complaints were referred to the Tribunal by the President of the Anti-Discrimination Board pursuant to section 93C of the Act. 3Section 108(1) of the Act empowers the Tribunal (a) to dismiss the complaint in whole or in part, or (b) to find the complaint substantiated in whole or in part and, if thought fit, to grant certain relief. 4The proceedings were heard on 16 and 17 August 2010. Mr Giovanetti was represented by an agent. TAFE was represented by counsel. The three personal respondents did not appear. Written notice of the hearing had been sent by the Tribunal to the last known address of each of them on 13 May 2010, and again on 13 August 2010. The third respondent, Mr Morcom, had attended a directions hearing in the Tribunal by telephone on 7 December 2009. We are satisfied that he was aware of these proceedings, and that notice of the hearing was served on him. In view of the conclusions to which we have come, it is unnecessary to decide whether notice was received by the other two personal respondents. Complaints of sexual harassment 5After the hearing, the Tribunal directed Mr Giovanetti to file and serve written submissions. Though somewhat compendiously expressed, the Tribunal gleans from them that he relies on four distinct allegations of sexual harassment as follows. 1) Between 1 and 15 September 2007, during a Tuesday cooking class, the fourth respondent Mr Mahoney said to him: 'Frenchy, have you ever done it with another guy - Why not? I'll do it with ya. It's natural'. 2) That afternoon, when the class was being held at the TAFE library, Mr Mahoney showed the applicant a photo of his girl-friend on his mobile telephone and said words to the effect, 'This is my girl-friend - would you like to do a threesome?'. 3) During class on Tuesday 2 nd or 9 th of October 2007, the third respondent Mr Morcom asked him, 'Hey Frenchy, are you getting any yet? Why don't you do a threesome with Travis [the fourth respondent] and his girl-friend. I'd love to watch you shag.' He then ran toward and jumped on a desk chair fitted with wheels, and slammed into a wall, observing to the applicant, 'This is how I do it with my girlfriend'. He followed this with, 'Why don't you have a threesome with your father and his best mate', and mimed oral sex. 4) After a class in the kitchen on Thursday 13 March 2008, the students moved to the computer room, where the second respondent Mr Massie held his mobile phone in front of the applicant's face, played a film on it of a male person having intercourse with another person's rear, and said 'Hey Frenchy, check this out, teabag'. 6It is not disputed that from time to time Mr Giovanetti was called 'Frenchy' and 'bro' by other students. That name-calling was ultimately not relied on in submissions as constituting sexual harassment. 'Sexual harassment' is defined relevantly as follows in section 22A of the Act: '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.' 7In the context in which each of the events relied on is alleged to have occurred, we are satisfied that each of them, if proven, would have constituted 'unwelcome conduct of a sexual nature ... in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that [Mr Giovanetti] would be offended, humiliated or intimidated', within the meaning of section 22A of the Act. The conduct was plainly committed, if at all, 'in relation to' Mr Giovanetti, because it was intended to be observed by him and done for that purpose. 8Section 22E(2) prohibits any 'adult student at an educational institution' from sexually harassing another student at the institution. According to the records held by TAFE, each of the three personal respondents was at least eighteen years old when each of the alleged events occurred, and each was a student of TAFE. It follows that the events, if proven, would have breached section 22E(2). No argument was put to the contrary. 9In relation to the three personal respondents, it remains to determine whether any of the claimed acts of harassment occurred at all, and if so, the circumstances. Complaint of complicity 10On 11 November 2010, Mr Giovanetti filed written submissions setting out the manner in which he says that TAFE, by its officers, had permitted the alleged acts of harassment, in breach of section 52 of the Anti-Discrimination Act 1977. This document, too, is compendiously expressed. Doing its best, the Tribunal gleans that the applicant relies on the following actions or inactions as breaches by TAFE of section 52. 1) When Mr Mahoney allegedly committed his first act of harassment between 1 and 15 September 2007, the teacher present - who was either Mary Allen or David Forster of TAFE - failed to intervene, even though the harassment could be heard and seen by most people present in class, including the teacher. 2) When Mr Mahoney allegedly committed his second act of harassment on that day, the supervising teacher, David Forster of TAFE, failed to intervene, even though the harassment could be heard and seen by most people present in class, including the teacher. 3) On another date in early September 2007, Mr Giovanetti consulted the Acting Head Teacher, Ms Slater, in her office, asking to enrol in extra classes in order to catch up to his fellow students in the Certificate III course. She asked him how he was going in his class and whether he had made any friends. He responded that he was not happy in class and wanted to be in another class with different students. Rather than investigate the reason for his dissatisfaction with his classmates, Ms Slater simply said, 'Ben, you have to try to get on'. 4) The class in which Mr Giovanetti was harassed by Mr Morcom on 2 or 9 October 2007 was supervised by the teacher David Forster, who failed to take any or adequate action to stop it or prevent its recurrence. 5) When re-enrolling in February 2008, Mr Giovanetti and his fellow students attended Mary Allen, who allotted each of them either to a Wednesday class or a Thursday class. On being allotted to the Wednesday class with two students called Andrew and Sam to whom he objected, Mr Giovanetti asked to be moved to the Thursday class, explaining that 'obviously there are a lot of people in Wednesday's class that I didn't want to be with'. After he repeated his insistence a number of times, Ms Allen moved him to the Thursday class. She failed to enquire who he wished to be separate from, or the reasons for his wish. 6) The alleged harassment by Mr Massie on 13 March 2008 occurred in the presence of the supervising teacher, Ms Cavanagh. Though she was sitting only a metre opposite the applicant and Mr Massie, who was to the applicant's left, she failed to take any action in respect of the harassment. 11In that document, Mr Giovanetti also sought to re-agitate a claim raised in his Points of Claim dated 8 December 2009 - headed, 'Statement of Claims' - that in April 2008 TAFE staff had breached section 50 of the Act by initiating and escalating a disciplinary investigation into his behaviour, in response to allegations of sexual harassment first made by him on 8 April 2008. 12The Anti-Discrimination Board had accepted for investigation complaints of sexual harassment and complicity in breach of sections 22E and 52 respectively, and referred those complaints to the Tribunal. No complaint under section 50 had been referred to the Tribunal. During interlocutory proceedings on 24 February 2010, the Tribunal had indicated that it did not consider any complaint under section 50 to be properly before it. 13The respondent ran its case on that basis, and objected at the hearing to the introduction of evidence tending to show a breach of section 50. No application was made to amend or expand the complaint to include a complaint under section 50. The grant of any such application, had it been made, would have necessitated an adjournment of the hearing. The respondent objects to the matter being re-agitated at this late stage. That objection is well founded. To proceed to determine that claim now would constitute a denial of procedural fairness to the respondent. For that reason, it is unnecessary to make any determinations concerning the disciplinary investigation into Mr Giovanetti's alleged misbehaviour on 13 or 27 March 2008, which led to his exclusion from the Wollongbar campus. So far as they concern the alleged harassment by Mr Massie and the claimed permission of that harassment by TAFE, however, the events of 13 March 2008 and following are considered below. Issues for determination 14The issues for determination may be summarised as follows. 1) Whether Mr Mahoney committed either of the two alleged acts of sexual harassment between 1 and 15 September 2007. 2) Whether Mr Morcom committed the act of sexual harassment alleged of him in October 2007. 3) Whether Mr Massie committed the act of sexual harassment alleged of him on 13 March 2008. 4) If any of the alleged acts of sexual harassment occurred, what if any orders are appropriate as against each of the personal respondents. 5) If any of the alleged acts of sexual harassment occurred, whether TAFE caused, instructed, induced, aided or permitted them in breach of section 52. 6) If TAFE permitted or was complicit in any such acts, what relief or orders are appropriate as against TAFE. Mr Giovanetti's evidence 15Mr Giovanetti gave his evidence orally, and by way of a written statement. He said that he was of French background, though born in Australia. From 2005, he had worked in his father's French restaurant. From January to July 2006, he studied for and completed the Certificate II Commercial Cookery course at the Wollongbar campus of TAFE. His teachers included some who he would later come across in the Certificate III course, namely Mary Allen, Alan Davis, and David Forster, and Jenny Slater. He felt that Mary Allen drew attention to his French background in class by mimicking his accent when saying 'Pardon?', and asking, 'Ben, is that how they do it in France?' When using the cooking phrase, 'mise en place', she would check with Mr Giovanetti as to whether her pronunciation was correct. David Forster - who the evidence established himself ran a French restaurant - would embarrass him by coming to his workbench in class and asking out loud what he was doing in his father's restaurant, and what the menu looked like. 16After completing Certificate II, Mr Giovanetti helped in his father's kitchen, and looked for an apprenticeship. He was not able to obtain one until April 2007, when he was accepted in an apprenticeship program run by an agency called, 'Making Apprenticeships Simple'. As a result, it was September 2007 before he managed to enrol in the Certificate III course in the second semester at Wollongbar TAFE. By that stage, his fellow students were ahead of him. 17The three personal respondents had also enrolled in the Certificate III course. He had not met them before. They had not been in the Certificate II course. Nevertheless, a number of students including these three started to call him, 'Frenchy'. He found that term debasing and derogatory. He inferred that they had found out about his French background. This caused him anxiety. He said he was 'made to feel as if I was an alien and different'. When asked in cross-examination what it was about the term 'Frenchy' which he found debasing, he said that any word ending with the suffix '-y' was intended to poke fun at the person referred to. He did not allege that it had a sexual connotation. 18In oral evidence, he complained that David Forster would enquire during kitchen preparation how the family restaurant was faring. Alan Davis would criticise him for making certain mistakes, explaining that, being French, he should know better, and asking when he was last in France, how long he spent there and what he did there. This evidence about Mr Forster and Mr Davis was led orally for the first time at the hearing. It did not appear in the written statement tendered to the Tribunal. Despite the presence in that statement of evidence designed to prove that he was singled out for being French, no explanation has been given for the failure to include it in the Applicant's statement. For that reason, it is appropriate to treat that evidence with caution. 19In oral evidence, Mr Giovanetti said that the fourth respondent, Mr Mahoney, would ask how long he had spent in France, and what he had done there. In his written statement, he recited only 'a few comments ... like 'Are you French? How long have you lived in France?' He did not attribute these comments specifically to any of the three respondents. While his oral evidence was not inconsistent with his statement, the failure to attribute those comments to any of the respondents until the hearing raises doubts as to whether they were made by one of the respondents, or by other students, or at all. It is appropriate to approach this evidence, also, with caution. 20In his written statement, Mr Giovanetti made no mention of the first two acts of sexual harassment on which he now relies. He made no mention, either, of the harassment alleged against Mr Morcom, except for one aspect it, in the following terms: 'In 2007 I was asked if I had yet got myself a girl-friend and whether or not I wanted to join them in a threesome, Sam said, 'You should learn how to pick up chicks rather than earning cooking' ....'. 21For that reason, it is appropriate to treat his evidence in relation to Mr Morcom with caution. 22Mr Giovanetti said that he complained about his treatment at TAFE to his parents. This caused his father to write a letter of complaint to TAFE on 14 September 2007,which was before the Tribunal. The writer complained about a teacher who ran his own French restaurant - in all likelihood, Mr Forster - asking questions of Mr Giovanetti about his father's restaurant. This teacher was accused of having a conflict of interest. The writer also complained that Mr Giovanetti had been 'verbally abused and mocked by the other apprentices'. He also complained that his son was being 'failed systematically at the practice by the teachers whose interests are to sack him in a way aimed, it seems, to depreciate the credibility of my establishment ...'. The letter called on TAFE to 'look into this'. The letter was mainly concerned with the issue of conflict of interest, and alleged attempts to denigrate the writer's restaurant. 23The applicant relies on this letter as evidence that he made early complaint of sexual harassment to his parents. Despite the reference in the letter to verbal abuse and mockery, the writer made no allegation of sexual innuendo, or of other forms of sexual harassment. The writer did not give evidence. In particular, no evidence was adduced tending to show that his reference to verbal abuse and mockery was intended to include the sexual harassment now alleged to have occurred in September 2007. In the absence of such evidence, it is not possible to find that the writer intended to refer to sexual harassment, or that any complaint of sexual harassment had been made to the writer by Friday 14 September 2007. 24In his statement, Mr Giovanetti admitted that his classes in 2007 were on Mondays and Thursdays. It follows that the harassment alleged against Mr Mahoney between 1 and 15 September must have occurred, if at all, by Friday 14 September. In those circumstances, we are not satisfied that he complained of harassment on or before 14 September. 25In his statement, he said that that in late 2007, Jenny Slater 'invited me to her office to discuss the situation which was developing in class'. He spent an hour with her, speaking 'about the course, what I wanted to do in the future and the problem with some students'. He told her that some students 'were going as far [as] harassing me with sex questions despite knowing I was not interested in their state of mind'. 26In oral evidence, he said that he had two or three meetings with Ms Slater prior to the incident on 13 March 2008. The first meeting, he said, was about a fortnight before 13 March 2008. He later said that it was in 'October or something' of the previous year. He admitted to confusion over dates. The meeting lasted, he said, about an hour and a half. He said he was finalising his timetable, and asked to attend class on Mondays so he could catch up. He said he was asked at that meeting whether he was finding it hard to integrate in class, and specifically whether he got on with particular students, whose names he did not relate in evidence. He was asked, 'Are you getting on with anybody?' He replied, 'Well not really if they're making comments but if they keep quiet and they work then I'll get on with everybody and I remember telling her that exactly ...'. 27He said the second meeting occurred in 2008, and covered the same subject matter, that is, his relationship with other students. 28In oral evidence, Mr Giovanetti alleged that in October 2007 Mr Morcom sexually harassed him in the manner detailed above, though he omitted the detail of miming oral sex. No mention of this incident had been made in his written statement. 29He said that, on enrolling in 2008, Mary Allen had distributed the students between the Wednesday and Thursday classes. Initially, she put him in the Wednesday class with students called Andrew and Sam who, he said, 'were two of the people that I had issues with'. No complaint concerning these two students is before the Tribunal. In oral evidence, he said that he told Ms Allen, 'I don't want to be with the people that you know I have problems with.' When she recommended he attend the Wednesday class, he said, 'No, I insist, put me in Thursday's class because obviously there are a lot of people in Wednesday's class that I don't want to be with.' He gave no evidence suggesting that he told her the names of persons in the Wednesday class with whom he had 'issues'. On his evidence, it is likely that the persons whom he had in mind were Andrew and Sam. 30In accordance with his request, Ms Allen transferred Mr Giovanetti into the Thursday class. She then transferred Mr Massie into the same class. There was no evidence that Mr Giovanetti made any objection, or that he then sought to be removed from the Thursday class. 31He said in his statement that on 13 March 2008, he arrived about five minutes late to cooking class. In cross-examination, he admitted being ten to fifteen minutes late, and that he missed the meeting at which tasks were allocated. As a result, no task was allocated to him. His teacher, Mary Allen, was absent. Ms Cavanagh had substituted for her. Mr Giovanetti asked the student chef what duties were required of him, but was ignored. He complained to Ms Cavanagh. She told him not to criticise the chef, as he was late. He asked why there was nothing to do. He denied being asked to do desserts. He said he raised the matter, only to be told that someone else was doing desserts. He asked if he could prepare the staff meals, at which Ms Cavanagh referred him to the head chef. She told the head chef to let him do the staff meals. He then prepared the staff meals. 32Ms Cavanagh criticised Mr Giovanetti for chewing gum in the kitchen as it was against regulations. He told her it was a minor matter compared to what he had to put up with from other students, but disposed of the gum. Ms Cavanagh, he says, did not notice that other students put their fingers in sauces. 33In cross-examination, he admitted that Ms Slater had come across to the kitchen to talk to him. She accused him of chewing gum, disobeying, disrupting the class and being rude. She demanded that he spit out the gum. He admitted that he was chewing the gum, and went out and spat it out. He agreed that it was a reasonable request. His admission that he was chewing gum when Ms Slater came contradicts his written evidence that he disposed of it at Ms Cavanagh's request. 34He recounted the sexual harassment by Mr Massie of that evening in the computer room, which is described above. He said that Mr Massie was seated next to him at a row of tables, and that Ms Cavanagh was seated opposite, about one metre from them. He said Ms Cavanagh 'heard all and saw that this student was harassing me but did nothing about it. She just sat there quietly.' In his letter of complaint to TAFE of 28 March 2008, referred to below, he complained that pornography was shown to him on mobile phones, and observed, 'All this in the presence of the teacher seated nearby, who watched and heard all, yet was unphased and made no remark (13 March).' The Tribunal infers that this was a reference to Ms Cavanagh. 35After kitchen class with Ms Allen on 27 March 2008, he was congratulated by her for a job well done. When the class went into the computer room, Ms Allen handed him a letter, which he thought must have been a commendation. He took it to his car, where he read it. It was a letter from Jenny Slater, the Acting Head Teacher, dated that day, headed 'Incident - unacceptable behaviour - breach of discipline'. It said: 'I am writing to request that you attend a meeting with myself and the campus manager on Monday at 12 noon 31 st March 2008 at A block (administration). The purpose of the meeting is to inform you of the consequences of your unacceptable behaviour on the 13 th March in terms of the TAFE NSW student policy.' 36Mr Giovanetti was astonished by the letter. He was surprised to find himself accused of misconduct some two weeks earlier. He read it over and over again, trying to work out what it could be about. Mr Massie was in the car park at the time. There was conversation between him and Mr Giovanetti about the letter. The versions of that conversation given by Mr Giovanetti and Mr Massie, whose letter regarding it was before the Tribunal, are quite inconsistent, and in the circumstances it is not possible to be satisfied which of them, if either, was correct. It is common ground that Mr Massie drove out of the car park. 37Mr Giovanetti got out of his car and walked back to Ms Allen. He asked her what the letter was about. She explained that she did not know, and that she was doing what she had been told by Ms Slater. He said something like, 'How long is this harassment going to go on for?', shook his head and walked out. He denied any aggression on his part. He described Ms Allen as 'agitated and aggressive'. He walked to his car and drove home. 38On 28 March 2008, Mr Giovanetti sent Ms Slater a letter in response by express post. That response contained his first written complaint of sexual harassment, in the following terms: 'I am writing to inform you that your letter received on Thursday after class was the deciding factor in my seeking redress for ongoing misconduct suffered at Tafe [sic] Wollongbar for the past few years. It seems cookery students at this Tafe have no moral values. ... A constant has been talking about depraved sex in explicit detail as though this were normal and showing me pornography on mobile phones (names withheld). One student said: "yeah, you just download it off the net". All this in the presence of the teacher seated nearby, who watched and heard all, yet was unphased and made no remark. (13 th March). This same teacher throughout practical class, kept harassing and pointing out my mistakes, despite serious hygiene mistakes from other students with whom she chatted. There has been incitement to ... homosexuality and convincing me to have gay sex (names withheld) or star in porn films ....' 39No evidence was given by Mr Giovanetti of any suggestion that he 'star in porn films'. 40The letter concluded, 'Should you maintain ... that my behaviour or not "mingling" is unacceptable (despite my good work and low key attitude), and I not be able to complete my course without hindrance, I shall have to pursue the matter.' 41The threat to 'pursue the matter' if he were unable 'to complete my course without hindrance' suggests that Mr Giovanetti was alive to the possibility that the 'consequences' which Ms Slater was intending to tell him about could include exclusion from classes. 42By letter dated 1 April 2008, Ms Slater acknowledged receipt on 31 March of his letter. She said, 'I have noted the issues raised and in order to investigate the matter further I will require more information regarding the alleged misconduct of other students and staff for example, names, dates and times'. She undertook to ask the cookery teachers to show TAFE's 'Harassment and bullying video to all students as a reminder that North Coast Institute will not tolerate harassment and bullying from staff or students'. She concluded, 'Please reply by email or in writing within 7 days of this letter so that I can investigate the matter further.' 43Her request for names of perpetrators, and dates and times of incidents, was as reasonable as it was conservative. She might reasonably have asked for more details, such as the precise actions and words of the alleged perpetrators on each occasion. It is inconceivable that TAFE could have investigated the matter properly without at least the details requested. 44This sequence of events demonstrates that TAFE's decision to take action against Mr Giovanetti for misconduct had been made before his first written complaint, and that the written complaint itself responded to news that TAFE had made that decision. 45In his statement, Mr Giovanetti said that in early April, soon after his letter of 28 March, he was called in to Jenny Slater's office, and taken to a meeting in the office Mr Mehan. He said that Mr Mehan, Ms Slater, a TAFE counsellor, and a note-taker were present. Mr Giovanetti said he was asked to supply the names of the students in question, and that he did so. Mr Mehan asked him to sign a document promising to behave. He refused, as he considered that he had not misbehaved. The counsellor asked him if he thought pornography was wrong. When he replied in the affirmative, she said, 'Ben you just have to be tolerant of people doing that. You know, if they want to show porn and things like that". Mr Mehan said he would see to Mr Giovanetti's returning to class, though he would have preferred him to sign the document. 46After a few weeks, Mr Giovanetti had heard nothing further. He rang Mr Mehan, to be told that the matter 'was now out of his hands and had gone further up the chain'. 47From the evidence of Ms Slater, Mr Mehan, Mr Callaghan and Ms Douglas discussed below, we are satisfied that Mr Giovanetti was not recalling a meeting in early April, but rather a meeting that occurred on 12 May 2008 between himself, Mr Mehan, Ms Slater, and counsellor Wendy Douglas. This, together with other matters detailed below, demonstrates to the Tribunal's satisfaction that, even if Mr Giovanetti was not intentionally misleading the Tribunal, his recollection of events was at times demonstrably inaccurate, and ought be approached with caution. Mary Allen 48Ms Mary Allen gave written and oral evidence. She had taught Mr Giovanetti in the Certificate II course in 2006, but did not teach him in 2007. As Commercial Cookery Coordinator, she enrolled him in the Certfiicate III course in 2007. She taught him for one day per week in 2008. She had noted in 2006 that Mr Giovanetti preferred to work on his own, rather than in pairs with other students, even where the work required that it be done in pairs. She denied mimicking his accent, or saying 'pardon' with a French accent. She admitted that she may have asked, 'Ben, is this how they do it in France?', without meaning to single him out. 49Ms Allen heard Mr Giovanetti being called 'Frenchy' during a class, but did not know by whom. She was unaware of any adverse reaction on the part of Mr Giovanetti. 50Relying on her own electronic diary notes, Ms Allen said that on 14 February 2008 Mr Giovanetti asked to be moved from her Wednesday class, because 'he didn't want to be in that class with smartarses'. He did not suggest that he was being sexually harassed or victimised. She denied having been told by Mr Giovanetti that Andrew or Sam had harassed him. 51About a week after 21 February 2008, Ms Allen took class in the campus restaurant, which was open to the public for dinner. She received a complaint from the student who was acting as chef, to the effect that Mr Giovanetti was not following instructions. Ms Allen told him, 'Look, you need to be a team player here.' After his response, she said, 'Look, if you can't participate you need to go over and see the Head Teacher because part of the learning outcomes here is that you need to be team player.' Mr Giovanetti said to her outside the kitchen words to the effect, 'I will be back, I have paid my fees and I am entitled to class'. He later returned after seeing Ms Slater. 52There was another class on 6 March 2008. The following week, on 13 March, Ms Allen was sick, and Ms Cavanagh took the class. The Easter break ensued. 53The next class was on 27 March 2008. Jenny Slater was off sick. She rang Ms Allen and asked her to print a letter to give to Mr Giovanetti. Ms Slater indicated that she required him to see her about behaviour, cooperation or communication. That night, Ms Allen congratulated him on 'participating a bit better'. After class, she printed the letter and handed it to him in an envelope. He left without opening the letter. He returned a short time later. She was in the theory room with the remaining two students. Mr Giovanetti clutched the letter in his clenched fist and shook that fist at her. He said, 'It wasn't just me, it was all of them.' His voice was raised and his pupils dilated. Ms Allen looked to see if there was another way out of the room. She said words to the effect, 'I am sick of being treated like this. I was just asked to give you this letter, you know'. He responded, "I am sick of being treated like a criminal. I have already got trouble with my neighbours. I don't need this.' Ms Allen felt concerned for herself and the others in the room. She said, 'Ben you need to come back or ring the campus tomorrow. There is nothing we can do about it tonight. You just need to deal with this tomorrow.' 54She was accompanied to the car park by another teacher, who observed Mr Giovanetti still there, sitting in his car. Ms Allen waited with her colleague for about ten minutes, after which Mr Giovanetti left. She then got in her car and drove home. 55Though Ms Allen was subjected to cross-examination, her evidence was unchallenged, save for the suggestion that she mimicked Mr Giovanetti's accent, which she denied. She presented as a forthright witness. Her testimony was internally consistent, and not so unlikely as to cause the Tribunal to doubt its accuracy. We are satisfied that it was accurate, and make findings in accordance with it. 56Her evidence was inconsistent with Mr Giovanetti's evidence that she had mimicked his accent, and that he had acted without aggression after being handed the letter on 27 March 2008. No reason has been demonstrated which would explain why Ms Allen would wish to mock a student by mimicking his accent. We are not persuaded that she did so, and prefer her evidence on that issue. Mr Giovanetti did not deny having called the Wednesday class 'smartarses'. We accept Ms Allen's version of that event as well. He did not suggest that he had informed her of his difficulty with any individual students. Mr Giovanetti described Ms Allen as agitated on 27 March 2008. That is consistent with her own description of fears for her safety and that of her students. We are satisfied that she held those concerns, and that she was both anxious and agitated. Her anxiety is consistent with her description of the attitude and words of Mr Giovanetti. It is inconsistent with his allegation that he exhibited no aggression. In this instance also, the evidence of Ms Allen is preferred, and we make findings in accordance with it, and with her other evidence. Anne Marie Cavanagh 57Ms Cavanagh also gave evidence orally and in writing. She was a part-time teacher at TAFE. She did not know Mr Giovanetti prior to 13 March 2008. On that day, she relieved for Ms Allen at a kitchen class at the Night Cap Cafe, the campus training restaurant. Her role was to supervise the students' work in the kitchen. She arrived between 1 and 2pm, when the students were in the theory room (otherwise known as the computer room) preparing menus, breaking into 'sections' and moving into the kitchen to commence work. Ben did not arrive until the class had moved to the kitchen, and for that reason did not participate in the organisation phase of the activity. Ms Cavanagh relied on her notes of the evening, electronically recorded by her on the night. They read: '14.30 Ben Giovanetti arrived late to class didn't do theory, made a seen [sic] in front of everyone, didn't want to do desserts said he had done it before, said that the other students, they were clicky [sic], did their own thing and he knew more than they ever would. He then was asked to do staff meals for 17.30. Head Teacher, Jenny Slater, with Daniel Ghuman, chef for the night attended to his drama, regarding this matter. 20:00 He was then asked to remove his chewing gum as no one else is aloud [sic] to have in class, he told me not to give him the attitude. Head teacher attended to matter again. Didn't want to be asked to do anything, hyiene [sic] was not good, said that other people were doing stuff when asked to stop eating food with fingers. He then took a break that was not allowed, know [sic] one knew were [sic] he was. He then was unable to concentrate and take direction from any one, could notdo [sic] his role in a professional manner.' 58We are satisfied that this was a contemporaneous record. There was no evidence to suggest a reason why Ms Cavanagh would wish to fabricate any part of her recorded narrative. As it is a contemporaneous record of those events by an eye witness, we are satisfied that it is reliable and accurate. It differs in significant respects from Mr Giovanetti's evidence. He said that he was up to fifteen minutes late. The notes record his arrival at 2.30pm, half an hour after class started. He claimed he was denied the opportunity to prepare desserts, whereas the contemporaneous notes record that he refused to do so when asked. In his written statement, he said that he removed the gum at Ms Cavanagh's request. The notes suggest he did so only when Ms Slater came over to the kitchen to speak with him. In cross-examination, he admitted to this. To the extent that Ms Cavanagh's notes differ from Mr Giovanetti's version, we prefer the evidence of Ms Cavanagh. 59Ms Cavanagh denied having witnessed the sexual harassment which Mr Giovanetti claims occurred in the computer room after kitchen duty. She says she did not enter the room at all. The Tribunal had the benefit of observing Ms Cavanagh in cross-examination. She maintained her evidence on this point, as on others. Her evidence was internally consistent, and not so unlikely as to cause the Tribunal to doubt its accuracy. Based on the likely accuracy of her contemporaneous notes, we are satisfied that her recollection of events was more accurate than that of Mr Giovanetti. There is no good reason to doubt the truth of her assertion that she was not present in the computer room at the time at which Mr Giovanetti says he was harassed by Mr Morcom, or her assertion that she witnessed no such incident. We are satisfied that her evidence on this and other issues is accurate, and make findings in accordance with it. We are satisfied that the contrary evidence of Mr Giovanetti is inaccurate. We are not satisfied that his evidence was knowingly untrue, but as a consequence of our findings concerning the events of 13 March 2008, Mr Giovanetti must be regarded as so unreliable a witness that his testimony, even if unchallenged, should not be accepted without corroboration. Jennifer Slater 60Ms Slater also gave evidence orally and by way of a written statement. She said that she had been Acting Head Teacher of the Tourism and Hospitality Department at Wollongbar TAFE. She reported to the Faculty Manager, Michael Callaghan, who was based at Taree. The campus manager at Wollongbar was Peter Mehan. She said that the roles of the two men with regard to student discipline overlapped. 61Ms Slater did not at any time teach Mr Giovanetti. She said that the Certificate II course in 2006 was a pre-apprenticship course, in which students were not required to have apprenticeships, and which students often did out of interest rather than for vocational reasons. The Certificate III course, however, was a trade course designed for students with vocational aspirations, and they were required to be enrolled in an apprenticeship and indentured to an employer for a certain period. 62In 2008, Mr Giovanetti's teachers were Ms Allen, Tyrone McGillick and Alan Davis. Ms Slater referred to entries in her diary in order to recall occasions when Mr Giovanetti had been brought to her attention by Ms Allen. On 13 February 2008, she recorded that Mr Giovanetti had asked not to be allocated to the Wednesday class, and was moved to the Thursday class, because he 'Doesn't like particular students'. This is consistent with Ms Allen's evidence. The Tribunal infers that Ms Slater was told of this by Ms Allen. 63On Thursday 21 February 2008, Ms Slater recorded that Ms Allen sent Mr Giovanetti to her concerning his behaviour, in particular his language and the way he spoke to supervisors and other students. She recorded that he refused to work with others. She did not record her conversation with him. In oral evidence, she recalled having warned him on that occasion that teamwork was one of his learning outcomes, that he had to show that he was competent in working as part of a team, and that failure to do so 'will lead to you not passing the unit'. 64Her entry for Thursday 28 February 2008 recorded that Mr Giovanetti was once more sent to her by Ms Allen for his 'unacceptable behaviour'. Ms Slater asked him to try to get on with the others, to make the learning process easier. She recorded that he 'is not wanting to listen'. She recalled warning him that 'this is not helping you to get to your apprenticeship'. 65Her entry for 6 March 2008 recorded that 'Mary reported bad behaviour of B. I spoke with him in kitchen and he seems not to care that his behaviour will affect him by not passing'. 66Her entry for 13 March 2008 recorded that 'Ben G spoke rudely to myself and Annie Cavanagh, teacher in charge, as well as Dan Ghuman, student in charge. Written up in document file and copy on file.' The latter, Ms Slater explained, was a reference to a Student Discipline Report, which was in evidence. 67The report recorded that Ms Slater was called to the kitchen by Ms Cavanagh at 2.30pm 'to deal with unacceptable behaviour issue by student Ben Giovanetti'. It recorded that class had commenced at 2pm, and that Mr Giovanetti had arrived twenty minutes late. Ms Slater did not say who told her this. As she was not called until after Mr Giovanetti's arrival, she cannot have witnessed his arrival at class. For that reason, the evidence of Ms Cavanagh that he arrived thirty minutes late is more likely to be correct. Ms Slater recorded that the student chef in charge, Mr Ghuman, had directed Mr Giovanetti to assist with desserts, but that he refused to do so. It was at that point that Ms Cavanagh sought assistance from Ms Slater. Ms Slater recorded that she advised Mr Giovanetti to follow instructions from the student chef in charge and the teacher. On her inquiry, the student chef indicated that staff meals need to be prepared by 5.30pm. Ms Slater asked Mr Giovanetti to organise the staff meals and at 6pm, when service commenced, to help any kitchen staff as directed by the student chef of teacher. He asked, 'why am I not on mains?' She described his demeanour as having arms folded and chest thrust outward, with an 'aggressive and angered tone of voice'. She recorded that she felt 'fearful'. She asked Ms Cavanagh to call if there were any more incidents. 68At about 8pm, during restaurant service, Ms Cavanagh again called on Ms Slater to deal with Mr Giovanetti. He was chewing gum in the kitchen, and had refused to get rid of it when asked. Ms Slater was in the restaurant with her 'front of house students'. She could not enter the kitchen, because she was not appropriately attired. She motioned to Mr Giovanetti to get rid of the gum. He nodded as if acknowledging the direction. Ms Cavanagh later informed Ms Slater that he was still chewing gum. Ms Slater recorded that he 'showed no respect for his supervisors or the hygiene standards we have adopted in our kitchen'. 69From Ms Slater's diary entry referring to the Student Discipline Report, we are satisfied that the report was first drafted on 13 March, and that it was contemporaneous with the events it describes. It is consistent with Ms Cavanagh's evidence, and we are satisfied of its accuracy. 70In her statement, Ms Slater described what occurred after Ms Cavanagh informed her that Mr Giovanetti was still chewing gum. She beckoned to him to come over to her, but he would not. She described Ms Cavanagh, standing near her, as 'visibly upset'. Mr Giovanetti 'finally came to the garbage bin and threw his gum out. At that point he walked away.' 71Ms Slater advised Ms Cavanagh that, if there was another incident, she should advise Ms Slater immediately, and Ms Slater would 'deal with it and possibly get security'. The reference to security corroborates Ms Slater's evidence that she 'felt somewhat fearful' as a result of Mr Giovanetti's actions that evening. 72On 14 March 2008, Ms Slater telephoned the campus manager, Peter Mehan. She felt that a letter should be written to Mr Giovanetti and a risk assessment undertaken in relation to him, or a meeting held. She did not want to meet with Mr Giovanetti alone, as she considered such a course unlikely to improve his behaviour. She did not describe her conversation with Mr Mehan. 73The following week, the Easter break occurred. She did not draw up a letter until the next restaurant night on Thursday 27 March. Mr Mehan agreed to meet with her and Mr Giovanetti on Monday 31 March at noon. 74On 27 March, Ms Slater was ill at home. She prepared the letter there, telephoned Ms Allen and arranged for her to print it on campus and deliver it to Mr Giovanetti. That was the letter given by Ms Allen to Mr Giovanetti after class that evening, referred to in Ms Allen's evidence. It requested that Mr Giovanetti attend the meeting on 31 March with Ms Slater and Mr Mehan. 75Mr Giovanetti did not attend that meeting on 31 March. That afternoon, he was referred to Ms Slater by Mr McGillick, after attempting to attend class with Mr McGillick. Ms Slater took him to Mr Mehan's office, but did not stay, as she had class. It was not until later that day that Ms Slater received Mr Giovanetti's written complaint of harassment sent on 28 March. 76She said 'to my knowledge, this was the first complaint Ben had made of being harassed by other students'. She denied ever having had a conversation with him in which he said he had a problem with students, or that he was an easy target for ridicule, or that students were harassing him wish sex questions. She said that she had made no diary entry to the effect that Mr Giovanetti had spent an hour with her as alleged, and that if he had done so, she would have diarised it. Given her assiduous practice in diarising events concerning Giovanetti, we are satisfied that this is so. It is unlikely that Mr Giovanetti spent an hour in her office as alleged in 2007, or in 2008, or that he made any complaint to her about other students. 77Ms Slater had prepared her address to Mr Giovanetti for the meeting scheduled at noon. Her notes are before the Tribunal. They indicate that she was hoping for, and prepared to accept, an apology, after which she intended to warn Mr Giovanetti that any further breaches of discipline would result in suspension. The notes do not indicate what would have happened if an apology was not forthcoming. It may be that she did not consider that eventuality. They do not provide any basis for finding that she intended to suspend him, or even to recommend suspension. 78On the afternoon of 31 March, Ms Slater received a recorded telephone message from Mr Giovanetti's father, indicating among other things, 'I've just heard he has been suspended. So I'm telling you Benjamin will be reinstated and he will not miss any lessons otherwise you will have me on your back.' From other evidence discussed below, we are satisfied that a decision to exclude Ben Giovanetti from campus had been made that day by Mr Callaghan, the Faculty Manager. It seems that Mr Giovanetti (senior) was informed of this decision the same day, but the evidence does not establish how or by whom he was informed. 79On 1 April 2008, Ms Slater with Mr Mehan's assistance prepared and forwarded to Mr Giovanetti the letter whose terms are extracted above, requesting particulars of the alleged harassment. Ms Slater rang Mr Giovanetti to inform him that he was excluded from classes pending completion of a risk assessment. For reasons given below, we are satisfied that the decision to exclude him had been made, not by Ms Slater or Mr Mehan, but by the Faculty Manager, Mr Callaghan. 80Ms Slater ensured that TAFE's harassment and discrimination video, which by then had been shown to all new classes for two years or more, was shown to both trade classes. She personally showed it to those classes on 9 and 10 April 2008. 81There was before the Tribunal a memorandum prepared by Mr Callaghan and sent to Ms Slater, recording in summary form the events described above from 13 March through to 31 March 2008. In it, Mr Callaghan indicated that Ms Slater had contacted him on Monday 31 March and informed him about Mr Giovanetti's letter of complaint, and that the two had a telephone conference on 1 April with Peter Barron. At that conference it was agreed as follows: 1) Though the complaint should be treated as a formal complaint, confirmation that it was so intended should first be sought from Mr Giovanetti. Ms Slater was to draft a letter of this nature, seeking particulars of the complaint, and email it to Mr Callaghan for editing. 2) Ms Slater was to ring Mr Giovanetti and inform him that he was not to return to campus until an investigation into his behaviour was completed. 82According to Ms Slater, she rang Mr Giovanetti on the afternoon of 1 April to inform him of the latter. The Tribunal questioned Ms Slater as to the apparent agreement on 1 April that she prepare a request for particulars to be edited by Mr Callaghan, in circumstances where the letter which was sent bore the date 31 March. The memorandum bears a note, made by Ms Slater, that the letter was in fact posted at 9am on 1 April 2008. The most likely explanation is that Mr Callaghan, who did not send his memorandum until 6 April, misremembered this aspect, and that he was informed at the teleconference that a letter had already been sent seeking particulars. That likelihood is corroborated by the circumstances that: 1) Ms Slater's request for particulars of 31 March did not invite Mr Giovanetti to confirm that he intended to make a formal complaint, and 2) the memorandum records an agreement in conference on Wednesday 2 April that Mr Callaghan ring Mr Giovanetti and 'find out if he wanted to have his letter treated as a formal complaint ...', which was done at 5pm that day. 83On 2 April 2008, Ms Slater received an email message from Mr Callaghan, addressed to her and Mr Mehan. Mr Callaghan wrote: 'I have reviewed the information you have given me about Ben Giovanetti's behaviour and I am satisfied that we need to invoke the Violent Behaviour, Identification of History and Management Policy- TAFE NSW (PD20070368). I am satisfied from your emails and our phone conversations that his behaviour seriously interferes with the physical or psychological safety and well being of staff and students. Could you please make arrangements to have a risk assessment made of Ben with a view to initiating a risk management plan. ...' 84Mr Callaghan did not specify in that correspondence why he took the view that he did about Mr Giovanetti's behaviour. Whatever the merits of that decision, it is clear that the decision to initiate a risk management plan was ultimately made by Mr Callaghan, and that he was motivated by a concern for the safety of staff and students. The fact that his decision was made in the knowledge that a complaint of harassment had been made by Mr Giovanetti does not prove that he was motivated to initiate that plan, or to investigate Mr Giovanetti's behaviour, as a result of the complaint. The temporal coincidence raises no more than a mere possibility of that. Even if the Tribunal had received and granted an application to amend the complaint to include an allegation of victimisation contrary to section 50 of the Act, it would not be satisfied that the actions taken by Mr Callaghan or his staff were taken 'on the grounds that' Mr Giovanetti had made complaint, or by reason of their knowledge that he intended to complain, or to bring these proceedings. 85Mr Callaghan's memorandum records that he rang Mr Giovanetti at 5pm on Wednesday 2 April, asked him whether he intended it to be a formal complaint, and received a response to the effect that Mr Giovanetti was 'undecided about treating it as a formal complaint'. He also informed Mr Giovanetti that there was to be an investigation into his behaviour, that he should not attend campus until further notice, and that he would be notified of a meeting with Ms Slater, Mr Mehan and a counsellor. 86On Thursday 3 April, the memorandum records that Mr Callaghan informed Mr Giovanetti by telephone that a meeting would be held on campus at 10am on 8 April. Mr Giovanetti agreed to attend. He repeated at least some of the allegations made in his letter of 28 March. 87Ms Slater said that on 6 May she attended a meeting with Peter Mehan and counsellor, Wendy Douglas, 'to determine the steps to be taken in completing a risk assessment regarding having Ben return to classes'. This suggests, and the Tribunal infers, that Ms Slater remained open to the prospect of Mr Giovanetti returning to class. 88On 12 May, she attended a meeting with him, Mr Mehan and Ms Douglas. Ms Slater recalled that Mr Mehan discussed the need for Mr Giovanetti to sign a contract regarding his behaviour. She denied that Ms Douglas made any comment about pornography of the kind alleged by Mr Giovanetti. Ms Slater observed that pornography was not allowed on campus or in classrooms as a matter of TAFE policy, and that if Ms Douglas had made such a comment, Ms Slater would have remembered it. 89The Tribunal had occasion to observe Ms Slater under cross-examination. Her evidence was internally consistent, and not to so improbable as to doubt its veracity. We are satisfied that she was a witness of truth and that her evidence was accurate. We make findings in accordance with it. Peter Mehan 90Mr Mehan gave evidence by way of a written statement. As he was not required for cross-examination, he did not give oral evidence. He said that as Acting Head Teacher of her faculty, Ms Slater was responsible to the Faculty Manager, Mr Callaghan, based at Taree. As campus manager, Mr Mehan was responsible for the implementation of TAFE's polices against discrimination and victimisation at Wollongbar. He provided copies of TAFE's policies for the prevention of harassment. He indicated that a video on harassment and bullying had been available to each of the faculties from before 2006, and was shown by them to their students. 91Shortly after 13 March 2008, Ms Slater advised him that she had experienced a problem with a student in class, and sought his advice. He advised that she send a letter requesting a meeting, before the student returned to campus. He arranged for a meeting at noon on 31 March. 92Mr Giovanetti did not attend the meeting at that time, but was referred to Mr Mehan's office later that day. Mr Mehan described him as 'agitated and unco-operative'. Mr Giovanetti informed him that he had replied to Ms Slater's notice of the meeting by express post. Mr Mehan told him that he could return to class that afternoon, pending further avice from the Faculty Manager. He made contemporaneous notes on a copy of Ms Slater's letter of 27 March. Those notes are consistent with his evidence as to what occurred at that meeting. They establish that Mr Giovanetti was not suspended from class that afternoon by Mr Mehan. 93Either that afternoon or shortly after, Mr Mehan received from Ms Slater a copy of Mr Giovanetti's written complaint, with other documents. They included emails from Mr McGillick and a student, Andrew Habner. Mr McGillick recorded that Mr Habner had witnessed Mary Allen deliver a letter after class to Mr Giovanetti on 27 March. He continued: 'After class Ben returned with the letter asking Mary "what's this all about?" At the time there were still a few students in the class. Later when I was leaving Mary told me about this. I went with Mary to her car and we could see Ben sitting in his car (about 10-15 min after the end of class). Mary and I were a bit concerned and she was about to call Craig to let him know she was on her way home. After about 5-10 min Ben drove off and Mary went home. ... He was a bit intimidating.' 94In his email, Mr Habner said: 'Mary asked me to come into room while she gave a letter to Ben in case of aggressive reaction. He took letter and left, I waited for several minutes to make sure he didn't come back and then left. Mary spoke to me after and said he had returned angry and had yelled and made a scene in front of two other students. When leaving found Mary and Tyrone in carpark waiting for Ben to leave as he had been sitting in car for some time and Mary and Tyrone were concerned he might become aggressive. .. My own feeling is that he is a very aggressive person and that he is trying to intimidate staff and the other students. I am concerned that he will react in an aggressive manner to any attempt to communicate with him and that he could become dangerous to staff and other students.' 95It is not clear whether Mr Habner is the student named Andrew with whom Mr Giovanetti gave evidence that he had personal difficulties. We approach with due caution the allegations or views expressed about Mr Giovanetti by Mr Habner, as he did not give evidence, and was not tested in cross-examination. His email does, however, together with that of Mr McGillick, establish the evidence which was before Mr Mehan on 31 March. 96In particular, that evidence showed that Mr Giovanetti had waited in the carpark after having an altercation with Ms Allen. It is not clear why he did so. We are not satisfied on the evidence that he was waiting for Mr Allen, with a view to having a further altercation with her or otherwise. However, the risk that he might have been doing so would have been obvious to Ms Allen, Mr McGillick, and anyone reading the account of Mr McGillick or Mr Habner. Even allowing for the possibility that his continued presence in the carpark on that evening was innocent, these two accounts together formed evidence from which an officer of TAFE could rationally infer: 1) that Mr Giovanetti posed a potential risk to teachers or students, and 2) that it would be imprudent or irresponsible to do nothing about that risk. 97Mr Mehan said that, later on 31 March, Mr Callaghan requested by telephone that that Ben not attend campus for twenty one days pending an investigation and its outcome. We are satisfied that, on 31 March 2008, Mr Callaghan had decided to exclude Mr Giovanetti from classes, a least temporarily. Mr Callaghan arranged a meeting between himself, Mr Mehan and Mr Giovanetti on Tuesday 8 April at 10am. 98When Mr Giovanetti did not attend, Mr Callaghan sent him a letter of that date. The letter, which was in evidence, gave particulars of alleged breaches by Mr Giovanetti of TAFE's Student Discipline Policy in class on 13 and 27 March. Mr Callaghan invited a response within seven days, and indicated that Mr Giovanetti was excluded from campus for 21 days pending the outcome of an investigation. He also indicated that he had instructed that a risk assessment be undertaken 'to determine under what conditions you will be able to return to the campus'. Even that that stage, the Tribunal infers, Mr Callaghan was contemplating a return to studies by Mr Giovanetti, on terms which would give some comfort that the alleged breaches of discipline would not recur. 99On 14 April, Mr Mehan wrote to Mr Giovanetti, requiring him to attend a meeting with him, Ms Slater and a TAFE counsellor on a mutually suitable date, in order to 'conduct a risk assessment' and 'to determine the conditions under which you can return to Wollongbar campus after 29 April 2008'. The Tribunal infers that, by 14 April, it was still contemplated that Mr Giovanetti would be allowed to resume classes on suitable terms. 100Mr Mehan also produced a letter dated 22 April 2008 from Mr Callaghan to Mr Giovanetti. In that letter, Mr Callaghan indicated: 1) that no response had been received to his letter of 8 April 2008, and 2) that he was satisfied that Mr Giovanetti had committed the acts alleged, and that they constituted breaches of student discipline. 101By way of penalty, he suspended Mr Giovanetti from class until he met with Mr Mehan, Ms Slater and the campus counsellor and negotiated a behaviour contract for his return to class. He strongly recommended that Mr Giovanetti arrange a time for the meeting with Mr Mehan. He advised of a right of appeal against his decision to the Director of Educational Programs and Services at Coffs Harbour. 102We are satisfied that, even as at 22 April 2008, TAFE was willing to permit Mr Giovanetti to return to class on suitable terms. 103Mr Giovanetti later appealed from Mr Callaghan's decision. 104In the interim, Mr Giovanetti and his solicitor met with Mr Callaghan and Mr Mehan on 6 May 2008. The minutes of that meeting record that Mr Giovanetti was unwilling to sign any document unless other students in the class also signed it. They indicate an agreement that Mr Mehan would organise a further meeting between himself, Ms Slater, the counsellor and Mr Giovanetti, to determine how best to facilitate Mr Giovanetti's return to class. They also recorded Mr Callaghan's assurance, after Mr Giovanetti said that he had lodged a complaint six months ago, that any harassment 'will be taken seriously but nothing can be done unless Ben makes a formal complaint and names the students'. That is evidence from which the Tribunal infers that Mr Giovanetti had not supplied the names of the students as at 6 May 2008. 105On 7 May, Mr Mehan notified Mr Giovanetti by letter that the meeting contemplated on 6 May was scheduled for 12 May. He described its purpose as 'to conduct a risk assessment in collaboration with you to determine the level of risk and how it can be best managed so you can resume your study program.' 106On 12 May, Mr Mehan met with Ms Slater, Ms Douglas and Mr Giovanetti at the Wollongbar campus. His written summary of the meeting is in evidence. It appears to have been prepared on 14 May. It indicates that Mr Giovanetti was not willing to sign a contract concerning his behaviour, and that TAFE required a 'detailed psychological assessment' before finalising its risk assessment. In his evidence, Mr Mehan explained that, as he recalled it, Mr Giovanetti had been willing to sign a contract at the conference, but that one had not yet been drawn up, and that he later changed his mind. That was probably the reason for the notation in the summary of 14 May that he was unwilling to sign. 107The summary indicates that the TAFE officers present ultimately decided, among other things, that the psychological assessment be conducted externally, that a criminal records check be undertaken, and that the suspension be continued pending the finalisation of the risk assessment. 108Mr Mehan denied that Ms Douglas made the comments attributed to her by Mr Giovanetti in relation to pornography at that meeting. 109By letter dated 17 June 2008, Mr Giovanetti's solicitors informed the Director, Educational Programs and Services that Mr Giovanetti would not sign any behaviour contract 'unless all students in the same class were required to also sign a similar document and action was taken in respect of the complaints made by our client in relation to other students [sic] behaviour'. The names of the students were not specified in the letter. 110By letter dated 18 June 2008, Mr Callaghan told Mr Giovanetti that he could continue his enrolment in second semester, provided that he behaved responsibly and with respect towards students and staff, that he did not use threatening language, that he follow any reasonable direction from teaching staff, and that he notify TAFE if he experienced problems with his studies. He asked that Mr Giovanetti sign and return a Student Behaviour Contract by 18 July. That contract constituted an undertaking to abide by the above conditions. 111Mr Callaghan also asked Mr Giovanetti to provide written consent to a criminal records check. 112By letter dated 26 June 2008, the Director, Educational Programs and Services, declined to determine the appeal against Mr Callaghan's decision of 22 April, on the grounds that it had been lodged out of time. He reminded Mr Giovanetti that he must sign the behavioural contract and consent to a criminal records check by 4 July, in order to continue his studies. 113After correspondence with Mr Giovanetti's solicitor, the Director convened a Review Committee Panel to hear the appeal. By letter dated 27 August 2008, the Panel announced its decision to dismiss the appeal. 114In the end, we understand that Mr Giovanetti did not sign the documents required of him, and did not return to class. 115Though Mr Mehan did not appear before the Tribunal, his evidence is consistent with that of Ms Slater, and with the documents annexed to his statement. It is not so improbable as to cause the Tribunal to doubt its accuracy. We make findings in accordance with his evidence and, except where otherwise indicated, with the description of events contained in those documents. Wendy Douglas 116Ms Douglas gave evidence by way of a written statement. As she was not required for cross-examination, she did not give oral evidence. She was a part-time counsellor at TAFE. She said that she attended the meeting on 12 May 2008 with Mr Mehan, Ms Slater and Mr Giovanetti. She attended no other meeting with Mr Giovanetti. She denied the comments which Mr Giovanetti attributed to her about pornography. She told the Tribunal there was no place for pornography in the class room, and that she would not say that this was something of which a student should be more tolerant. 117Her evidence was unchallenged, save that Mr Giovanetti gave contrary evidence. It was consistent with the evidence of Mr Mehan and Mr Slater. We make findings in accordance with Ms Douglas' evidence. To the extent that Mr Giovanetti's evidence contradicted her evidence, Mr Giovanetti's evidence is rejected. Our finding on this issue also supports the view that Mr Giovanetti was an unreliable witness. Alan Davis 118Mr Davis gave evidence by way of written statement. As he was not required for cross-examination, he did not give oral evidence. He said that he was a part-time teacher, who taught Mr Giovanetti in 2006, 2007 and 2008. He denied seeing any harassment of Mr Giovanetti by the third or fourth respondents. He observed that he does not allow such behaviour in class, and would have 'stopped it straight away' had it occurred. 119He did, however, recall that in late 2007, Mr Morcom arrived late, and had a verbal altercation with Mr Giovanetti, in which he called Mr Giovanetti 'a loser', and Mr Giovanetti responded, 'You get here late, you haven't done your assignment and you dare to mock me?' He sent them both outside, with a view to speaking with them later. When he went out to do so, Mr Morcom had gone. 120He also heard students from time to time referring to Mr Giovanetti as 'Frenchy', but did not think it was intended to be derogatory. He said Mr Giovanettti never complained about harassment by other students to him. 121Mr Davis' evidence was unchallenged and internally consistent. We make findings in accordance with it. David Forster 122Mr Forster also gave evidence by way of a written statement. He was not required for cross-examination and did not give oral evidence. He said that he taught on a part-time basis at the Wollongbar campus, and operated a restaurant in Lismore with a French name. He taught Mr Giovanetti in 2006 and in 2007. 123He said that in 2007 he knew that Mr Giovanetti was working as an apprentice chef, but thought he was working in a motel at Casino. He knew of his father's restaurant, but did not know that Ben Giovanetti was working there. He denied asking Mr Giovanetti about his father's restaurant, though he admitted that he would ask students how they were going at work, and may well have asked that question of Ben Giovanetti. 124Messrs Massie, Morcom and Mahoney were also in his class in 2007. He said: 'I did not ever see them give Ben a hard time and I would not have allowed it as I exercised a tight discipline in the classroom and kitchen.' 125Mr Forster's evidence is internally consistent, and not so inherently unlikely as to cause the Tribunal to doubt its truth. It is inconsistent with Mr Giovanetti's submissions that Mr Forster (1) asked him about his father's menu and business, (2) was in a position to observe one or both of the acts of sexual harassment which he alleged were committed by Mr Mahoney between 1 and 15 September 2007, and (3) ws in a position to observe the harassment alleged to have been committed by Mr Morcom late in 2007. For the reasons given, the Tribunal has found Mr Giovanetti to be an unreliable witness. The Tribunal has no reason to doubt the accuracy of Mr Forster's evidence. To the extent that it differs from that of Mr Giovanetti, we prefer the evidence of Mr Forster. Other evidence 126TAFE relied on further documentary evidence which was before the Tribunal. In light of the findings of fact which we have made, it is unnecessary to consider that evidence. Findings 127We are satisfied that Mr Forster did not observe the second of the acts of harassment alleged to have been committed by Mr Mahoney in September 2007. Having regard to Mr Giovanetti's allegation that he was in a position to do so, and to the view that we have taken as to Mr Giovanetti's unreliability as a witness, we cannot be satisfied that the alleged act occurred at all. 128We are also satisfied that Mr Forster did not observe the first of the acts of harassment alleged to have been committed by Mr Mahoney in September 2007. We are satisfied that Ms Allen did not teach Mr Giovanetti in 2007, even if she enrolled him. Having regard to Mr Giovanetti's submission that either Mr Forster or Ms Allen was in a position to observe the alleged act of Mr Mahoney, and to the view that we have taken as to Mr Giovanetti's unreliability as a witness, we cannot be satisfied that it occurred at all. 129For the reasons given above in the context of Ms Cavanagh's evidence, we are satisfied that the alleged act of sexual harassment by Mr Massie on 13 March 2008 did not occur. 130Having regard to that finding, and to the Tribunal's impression that Mr Giovanetti was an unreliable witness, that his testimony should be approached with caution, and that even where uncontradicted, it ought not be accepted without corroboration, we are not satisfied that the act of sexual harassment alleged to have been committed by Mr Morcom in October 2007 occurred. 131As the Tribunal is not satisfied that Mr Giovanetti was sexually harassed by any of the personal respondents, the complaint that TAFE caused, instructed, induced, aided or permitted such acts contrary to section 52 must be dismissed. Even if the Tribunal had been satisfied that one or more of the acts had occurred, the evidence does not establish on the balance of probabilities that any of those acts were observed by TAFE officers, or that they were even aware of them until well after the acts relied upon had concluded. Orders 132The complaints of sexual harassment against each of the second, third and fourth respondents are dismissed. 133The complaint of complicity against the first respondent is dismissed. 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: 12 August 2011