Binetti v Iannotti - [2008] SAEOT 4

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
BINETTI v IANNOTTI
[2008] SAEOT 4
Judgment of Her Honour Judge Trenorden, Member Mr H Yapp and Member Ms H Jasinski
3 April 2008
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION - SEXUAL HARASSMENT
Whether facts amount to discrimination on the ground of sex - Whether facts amount to sexual harassment - Comment on referral - Comment on evidence in support of claim for damages.
HELD: Case that sexual harassment or sexual discrimination occurred not made out.
Equal Opportunity Act 1984, referred to.

BINETTI v IANNOTTI
[2008] SAEOT 4
THE TRIBUNAL DELIVERED THE FOLLOWING JUDGMENT:

This matter was referred to the Tribunal by the Commissioner for Equal Opportunity. Ms Binetti made a complaint alleging that Mr Iannotti had acted in contravention of the Equal Opportunity Act 1984 (the Act) in that Mr Iannotti, by the conduct alleged in the complaint:
Unlawfully discriminated against Ms Binetti in employment in that he subjected her to unfavourable treatment on the ground of her sex and by subjecting her to a detriment in contravention of s 30(1)(a) of the Act.
Unlawfully subjected Ms Binetti to sexual harassment in the course of employment by:
On more than one occasion making a remark with sexual connotations relating to Ms Binetti; in such a manner that Ms Binetti, on reasonably grounds, felt offended, humiliated and intimidated in contravention of s 87(1) of the Act.
Ms Binetti sought the following orders:
1.Damages for embarrassment, denigration, humiliation, stress and psychological injury.
2.Compensation for financial loss.
3.A written apology from Mr Iannotti.
4.Interest.
5.Costs.
The matter was referred to the Tribunal by the Commissioner pursuant to s 95(8)(b) of the Act; that is on the basis that the Commissioner has attempted to resolve the matter by conciliation but has not been successful in that attempt.
The Complaint
Ms Binetti is a young woman, who at the time of the alleged events was aged 16 years 11 months. She spoke to Mr Iannotti concerning a position of employment at The House of the Bride, alleged then to be a business owned and operated by Mr Iannotti. There followed an employment interview at Café Minos in Torrensville on 21 February 2006. It is alleged that during the interview Mr Iannotti made comments of a sexual nature to and about Ms Binetti and further, made comments about her physical appearance.
As had been agreed to on 21 February 2006 Mr Iannotti made a telephone call to Ms Binetti on 22 February 2006 during which, it is alleged, Mr Iannotti made comments and asked questions of an overtly sexual nature and asked Ms Binetti to respond to those questions.
It is further alleged that the comments and questions of an allegedly overtly sexual nature made by Mr Iannotti to Ms Binetti in the telephone call of 22 February 2006 were unsolicited, and Ms Binetti advised Mr Iannotti that they were unwelcome.
The Legislation
Ms Binetti relies on s 30(1)(a) and s 87(1) of the Act. The provisions of s 30(1)(a) are as follows:
30(1)It is unlawful for an employer to discriminate against a person –
(a)in determining who should be offered employment.
…
Section 30 is in Part 3 of the Act, which addresses the prohibition of discrimination on the ground of sex, sexuality, marital status or pregnancy. The provisions of s 29 in Part 3 of the Act assists in giving meaning to provisions of s 30. The relevant part of s 29 is set out below:
29(1)In this Part –
discriminate means –
(a)discriminate on the ground of sex;
…
29(2)For the purposes of this Act, a person discriminates on the ground of sex –
(a)if he or she treats another person unfavourably because of the other’s sex.
…
It was also argued that Ms Binetti had suffered sexual harassment. Part 6 of the Act, in s 87 provides that it is unlawful for certain persons to sexually harass another person. The provision relied upon is set out below:
87(1)It is unlawful for an employer (being a natural person) to subject an employee, or a person seeking employment, to sexual harassment.
The meaning of sexual harassment is explained in subsection 11, as follows:
87(11)For the purposes of this section, a person subjects another person to sexual harassment if he or she does any of the following acts in such a manner or in such circumstances that the other person feels offended, humiliated or intimidated:
…
(c)he or she makes, on more than one occasion, a remark with sexual connotations relating to the other,
and it is reasonable in all the circumstances that the other person should feel offended, humiliated or intimidated by that conduct.
Dealing first with the complaint in relation to s 30(1)(a), it is alleged, in effect, that Mr Iannotti treated Ms Binetti unfavourably because of her sex, in determining whether she should be offered employment.
In relation to the complaint based on s 87 (1), it is alleged, in the context of Ms Binetti seeking employment with Mr Iannotti’s business, that Mr Iannotti subjected her to sexual harassment in that he made remarks to Ms Binetti on more than one occasion, which remarks had sexual connotations relating to her, and it was reasonable in all the circumstances that she should feel offended, humiliated or intimidated by the conduct. Ms Binetti also had to show that she was either offended, humiliated or intimidated by the conduct.
The occasions on which it is alleged that Mr Iannotti made remarks to Ms Binetti with sexual connotations are the interview on 21 February 2006 and a telephone conversation on the following day, 22 February 2006, the latter being, it is alleged, an extension of the interview.
The Interview
Ms Burke, counsel for Ms Binetti, painted a picture of Mr Iannotti setting up an interview to "groom" Ms Binetti for his subsequent approaches. That was based on the location of the interview being away from the place of employment and the allegations that during the interview Mr Iannotti repeatedly told Ms Binetti that she was beautiful and in addition, that he told her a story about a former 14 year old female employee who had left because she had become pregnant after sex with an older man.
On her own admission, Ms Binetti was both very nervous about the interview and really excited at the prospect of a job. She was hoping to undertake a course of study in makeup artistry and being in paid employment would give her the means to pay for the course.
Ms Binetti was 16 years and 11 months of age at the relevant time and living with her then boyfriend at Richmond. She had left school at the age of 15, either halfway through or close to the end of year 10 in 2004, after she had moved out of home. In 2005 Ms Binetti studied year 11 at TAFE, but did not complete the year due to family issues late in the school year. She says she is keen to finish year 11 and undertake year 12 studies. She appears to have been unemployed since the interview with Mr Iannotti in 2006, except for a period of about 2 months commencing in August 2007, when she was employed as a waitress at a restaurant.
Ms Binetti alleged that during the interview Mr Iannotti made a remark with sexual connotations relating to Ms Binetti. The evidence as to the interview is set out in the paragraphs that follow.
The interview was conducted at Café Minos on Henley Beach Road at Torrensville, and not at The House of the Bride, then located at North Adelaide. The evidence given by the parties as to which party suggested Café Minos as the location for the interview, was in direct contradiction. It appears to us that the Torrensville location may have been suggested by Mr Iannotti as being of benefit both to himself and to Ms Binetti; he had a meeting later in the morning at Torrensville and she lived close to Torrensville and wasn’t sure about the bus changes required to get to North Adelaide. We concluded that the interview was conducted at Café Minos at the suggestion of Mr Iannotti and with the agreement of Ms Binetti, in the interests of their mutual convenience.
Ms Binetti's evidence was that she was nervous about the interview as she had not participated in many formal job interviews. This was different from Mr Iannotti's understanding, based on information he had been given in Ms Binetti's CV to the effect that she had previously been employed in 2 separate jobs. The actual interview location of Café Minos is irrelevant, in the sense that once it was agreed to meet at Torrensville, and we have found that it was by agreement, the precise location of the interview, given that it was a place open to the public in the form of a café, was of no importance.
Mr Iannotti met Ms Binetti and her mother, Mrs Binetti, who had driven Ms Binetti to the interview place, outside Café Minos. Mrs Binetti said she would return later, and Ms Binetti and Mr Iannotti went into the café together and commenced the interview. It is alleged by Ms Binetti that Mr Iannotti ordered some drinks for both of them, for which he paid. Mr Iannotti told Ms Binetti about the position of employment on offer and allegedly also told her the following:
· The position had previously been held by a 13 or 14 year old girl who had left the position because she had got pregnant by a 40 year old man who was either a friend or acquaintance of Mr Iannotti; and
· That he was impressed with Ms Binetti and that she was very beautiful.
The interview was her first interview for a paid position of employment, according to Ms Binetti's later evidence. She admitted to being very nervous and we think she may not have retained a complete memory of the interview, given her nervousness.
In Ms Binetti's complaint to the Equal Opportunity Commission, she stated that the interview had gone well and that Mr Iannotti appeared professional. This was also what Ms Binetti had told her father. In her statement of evidence (read to the Tribunal) Ms Binetti claims she told her mother that the interview had gone well, but also that Mr Iannotti had told her about the pregnant former employee and that she (Ms Binetti) was beautiful.
Mrs Binetti also reported that Ms Binetti stated that the interview had gone well and that Mr Iannotti seemed nice. This was in response to Mrs Binetti's misgivings expressed on the way to the interview, about the appropriateness of the location and therefore the propriety of the interview. It appears that Ms Binetti, immediately after the interview, despite thinking that some of Mr Iannotti’s statements were strange, was excited at the prospect of the job and the work at the House of the Bride.
We have wondered about the reliability of Ms Binetti's evidence. When asked how she addressed the respondent during the interview, she said that she called him Mr Iannotti, but that he had then said to call him "Tony". A short time later in evidence, Ms Binetti claimed that she did not know Mr Iannotti's last name either at the time of the interview or the next day when telling her father of the events.
Mr Iannotti's evidence was that the "beautiful" comments at the interview related to the suitability of Ms Binetti's presentation, in particular her dress, having regard to the nature of the position involving as it did, working with clients. This may have been the case. Mr Iannotti denied that he spoke at the interview of a 14 year old female employee having to cease employment after sex with a 40 year old male had resulted in pregnancy.
We find that after the interview Ms Binetti did not feel offended, humiliated or intimidated. That is borne out by her evidence and corroborated by the evidence of her mother.
The Phone Call or Calls
The next day, Ms Binetti was expecting a phone call from Mr Iannotti, in accordance with the arrangement made at the end of the interview the day before. He called her on her mobile phone from his mobile phone, at approximately 11:24 a.m., according to the phone records. The evidence of each party then diverges.
Ms Binetti's version says that Mr Iannotti called, said he had yet to interview another person and would call again after that interview had taken place. He then said that he had another couple of questions for her but that his mobile was "going flat" and asked whether he could call her on the land line, and asked for her landline number. Her evidence is that Mr Iannotti subsequently called her on her home landline, and that this second call lasted about 5 minutes or less. On her version, it was during this call that Mr Iannotti asked her whether she had a criminal record, whether she took drugs, how long she had been with her boyfriend, whether he took drugs, whether she lived with him, whether they had sex together and other questions relating to sexual relations between Ms Binetti and her boyfriend.
Whether his mobile phone was low on power or not, Mr Iannotti could have called Ms Binetti on her mobile phone from a landline, in any event. One reason why Mr Iannotti might have wanted to call to a landline phone rather than a mobile phone could have been to avoid a record of his call (the mobile phone number) being entered into the receiving phone, as happens when a call is made to a mobile phone.
Mr Iannotti’s version is that he used his mobile phone and called Ms Binetti on her mobile phone at 11:24 a.m. In the course of that call he apologised for not having called her earlier, explained that he had yet to conduct another interview and so would call her after that had been conducted, and said that he had another couple of questions. He then proceeded to ask her those questions which were whether she had a criminal record, whether she took drugs, and whether transport to and from the premises of the House of the Bride would pose a difficulty for her, given that they often had to work late on Thursday and Friday nights. He informed her that if necessary, he could drive her home after work when they worked longer hours on these nights. There was no other conversation.
Mr Iannotti tendered the phone records for his mobile phone for the relevant period. Regrettably, what was tendered was, in respect of the relevant page, not the original of the document, so we find. On behalf of Ms Binetti it was submitted that the original was tampered with, so that in some numbers, the "3" had been altered by hand in an attempt to make it appear to be an "8". Without seeing the original of the relevant page of the phone records, which was not provided, it is impossible to determine whether this was done, although on the face of the exhibit there is some substance in the submission. However, if that was the case, and in consequence the number called from Mr Iannotti's mobile phone at 11:27 a.m. and which lasted 16 minutes, made immediately after the call made from his mobile phone to Ms Binetti's mobile phone, may have been to the landline phone at the Ms Binetti's place of residence.
The Tribunal received no specific evidence about the telephone number of the landline in Ms Binetti's place of residence at the relevant time. However the original complaint to the Equal Opportunity Commission, a copy of which was tendered to the Tribunal by Mr Iannotti, includes a landline phone contact for Ms Binetti (at the time). That number was 8351 5334. If it was proven that the phone record had been tampered with, as has been suggested, the number that was dialled from Mr Iannotti's mobile phone at 11:27 a.m. on 22 February 2006, was 8351 5334 and not 8351 5384 as appears on Exhibit R4.
The Telstra record indicates that this call lasted 16 minutes. There is evidence to suggest that if there was a second call made by Mr Iannotti to Ms Binetti, from Mr Iannotti's mobile phone, it was unlikely to have lasted 16 minutes. First, Ms Binetti's evidence was that the call was at about 11:30 a.m. and lasted around or less than 5 minutes. Secondly, Dr Chung's notes indicate that Ms Binetti told her that she had been "sexually harassed over the phone for 2 minutes". The contents of the doctor’s notes was confirmed as an accurate record by Ms Binetti of what she had told Dr Chung. Thirdly, the evidence of Ms Binetti and her father Sam Binetti as to the timing of events that followed is consistent with any telephone call having been concluded at around 11:30 a.m. Even allowing for flexibility in the estimates of the timing of events as given in evidence, it is difficult to see how subsequent events fitted with a telephone call having concluded at 11:43 a.m. Fourthly, it is difficult to accept that Ms Binetti would not have terminated a telephone conversation in which she did not feel comfortable with what was being said to, or asked of her, earlier than at the 16 minute point, although we appreciate that the questions which she found upsetting may have only been asked after 14 or 15 minutes of an unobjectionable conversation.
We find that Mr Iannotti did not call Ms Binetti from his mobile phone at 11:27 a.m. on 22 February 2006.
However, our finding does not dispose of the suggestion that Mr Iannotti made a second call to Ms Binetti. Mr Iannotti argues that he could not have made a second call, on the basis that the phone record shows that within approximately 30 seconds of the end of the call made to Ms Binetti at 11:24 a.m., he made a 16 minute phone call from his mobile phone, to another person whom he identifies as Brian who had an engraving business and who was preparing foil blocks for printing purposes, for him. In other words, Mr Iannotti submits that he could not have made a call, either from his mobile phone or a landline, as claimed by Ms Binetti, in addition to the 2.5 minute (approximate) call made at 11:24 a.m.
We note that there is no mention of a second phone call either in the notes of Dr Chung or Mr Sam Binetti or in the statement of complaint made by Ms Binetti to the Equal Opportunity Commission on 15 March 2006.
According to the evidence, the chronology of relevant events on 22 February 2006, as claimed by the various witnesses, is as follows (times are approximate):
10:30-10:45 a.m.        Mr Iannotti arrives at Hunter Brothers at Welland. He subsequently recalls that he promised to telephone Ms Binetti at 10 a.m.
11:24 a.m.Mr Iannotti calls Ms Binetti on her mobile phone (approximate duration: 2 minutes 30 seconds).
11:27 a.m.A further call is made from Mr Iannotti’s mobile phone (16 minutes duration).
11:30 a.m.Time of call to Ms Binetti from Mr Iannotti. (Sam Binetti's notes).
Ms Binetti calls her father at his home.
Ms Binetti calls her boyfriend to leave work (nearby) and take her to her father's house at Hindmarsh.
Ms Binetti's boyfriend collects her from their home at Marleston and takes her in his car to her father's house (about 10 minutes drive).
11:45 a.m.Ms Binetti arrives at her father's house (her evidence). Her boyfriend stays with her (her father's evidence as to the boyfriend staying with her is to the contrary).
12-12:15 p.m.              Sam Binetti makes notes of Ms Binetti’s statements (Ms Binetti's evidence was that the notes were made within 30 to 40 minutes of the phone call).
Sam calls his brother Barry to take him to see Mr Iannotti at North Adelaide.
12:45 p.m.Sam's brother Barry collects Sam from his house at Hindmarsh to go to see Mr Iannotti at North Adelaide, leaving Ms Binetti to look after her 3 year old and 4 year old siblings at Sam's house (Sam's evidence is that he made notes for about an hour before leaving with his brother).
1 p.m.Sam and Barry arrived at the shop in North Adelaide; Mr Iannotti is not there; they go next door to have a coffee and wait for Mr Iannotti to return (Sam Binetti's evidence).
1:30 p.m.Mr Iannotti returns to the shop at North Adelaide (Mr Iannotti's evidence).
Sam and Barry see Mr Iannotti at the premises of the House of the Bride, remonstrate with him and collect Ms Binetti’s CV.
2:15 p.m.Sam and Barry return to Sam's house (Sam's evidence is that they were away from the house for about 1.5 hours; Ms Binetti's evidence is that her father returned between 2 and 2:30 p.m.).
Ms Binetti leaves Sam's house with her boyfriend and telephones for an appointment with Dr Chung while seated in her boyfriend's car at the front of Sam’s house (Sam's version is that her boyfriend collects her from her father’s house).
Ms Binetti's boyfriend takes her in his car to see Dr Chung at Galway Medical Centre at Marleston.
2:25 p.m.Sam telephones the Service to Youth Council.
2:35 p.m.Service to Youth Council telephones Sam.
3:30 p.m.Time of Ms Binetti's appointment with Dr Chung (Ms Binetti's evidence was 3:00-3:30pm).
3:47 p.m.Ms Binetti sees Dr Chung, on appointment (Dr Chung's notes).
4 p.m.Ms Binetti reports the alleged incident to SA Police at Netley and is given the telephone number of the Equal Opportunity Commission (her evidence is that would have been close to 4 p.m. as the police station is across the road from the doctor's surgery).
Post 4:30 p.m.             Ms Binetti telephones the Equal Opportunity Commission (her evidence is that she made the call half an hour after reporting to the police).
["Sam Binetti" is Mr Saverio ("Sam") Binetti, the father of Ms Binetti. "Barry" is the brother of Mr Saverio Binetti.]

Having had regard to how matters unfolded after the phone call in which objectionable questions were asked of Ms Binetti on her evidence, we have come to the conclusion that there was likely to have been only one phone call made that morning by Mr Iannotti to Ms Binetti, and that was the call made from his mobile phone that commenced at 11:24 a.m. If there was a second call by Mr Iannotti to Ms Binetti, it can only have been made by him from a landline at 11:27 a.m. or later and lasted approximately 3 minutes, while another person made a call from Mr Iannotti's mobile phone, commencing at 11:27 a.m. and concluding 16 minutes later. We think it unlikely in the circumstances, but not impossible.
That leaves open the question of whether Mr Iannotti asked the questions as alleged, of Ms Binetti during a phone call made on 22 February that had a duration of 5 minutes or so and concluded at around 11:30 a.m. We accept that, if Mr Iannotti asked questions of Ms Binetti as alleged, they would have been both objectionable and distressing.
However, it is not necessary for us to make a finding in this regard, as we have concluded that in the context of the Equal Opportunity Act neither sexual harassment or discrimination on the ground of Ms Binetti's sex has been made out.
Unfavourable Treatment Because of Sex
It is alleged that Mr Iannotti unlawfully discriminated against Ms Binetti in that he treated her unfavourably because of her sex in determining or in the course of determining whether she should be offered employment.
The case is not made out. There was no evidence that Mr Iannotti determined that Ms Binetti should not be offered employment. There was no evidence that Ms Binetti was treated differently from any other applicant for the position of employment for which she was interviewed. Indeed, we understand that the other persons interviewed or proposed to be interviewed for the position were of the same sex as Ms Binetti. We think the case, in so far as it relied on s 29(2)(a) and s 30(1)(a) of The Equal Opportunity Act was misconceived.
Sexual Harassment
For a case to succeed on the basis that a natural person who is an employer has subjected a person seeking employment to sexual harassment, it is necessary to show that the employer has made, on more than one occasion, a remark with sexual connotations relating to the prospective employee, as a first step. In addition, the prospective employee must have been subjected personally to the remark and have felt offended, humiliated or intimidated on each occasion.
There were only 2 occasions, in our view, on which there was contact between Ms Binetti and Mr Iannotti. The first was the interview at Café Minos on the 21 February 2006. The second was the follow-up telephone call or calls on Wednesday 22 February.
Accepting for the purposes of this case, that Mr Iannotti was in the category of an employer under the Act, we have concluded that the case for sexual harassment has not been made out.
In respect of the first occasion, there was no evidence that Ms Binetti felt offended, humiliated or intimidated, either during or subsequent to the interview at Café Minos; to the contrary she thought the interview had gone well and that Mr Iannotti had been professional. Thus, even if Mr Iannotti had told Ms Binetti that she was beautiful, and even if this comment was not made in the context of his explaining the need to be well presented when working with clients, the remark did not constitute sexual harassment.
Since there was only one other occasion on which it is alleged that Ms Binetti was subjected to sexual harassment by Mr Iannotti, it is not possible for a case of sexual harassment to succeed, given the provisions of s 87 of the Equal Opportunity Act.
Thus, in respect of the second occasion, if the alleged questions in a phone call, to which objection was made and in respect of which Ms Binetti claimed to have felt shocked, offended and humiliated, can constitute "a remark with sexual connotations relating" to Ms Binetti, and they were made as alleged, such incident would constitute the sole occasion on which sexual harassment occurred. The Act requires that a remark with sexual connotations be made on more than one occasion for sexual harassment to have occurred.
Counsel for Ms Binetti submitted that the phone call or calls on 22 February constituted an extension of the interview that had commenced the previous day. If that is the complainant’s position and given that there has been no other contact alleged between Ms Binetti and Mr Iannotti, we are curious as to how this matter came to be referred to the Tribunal; there having been only one occasion when sexual harassment could have occurred.
Damages Claimed
Given our determination that no case of either sexual harassment or discrimination on the ground of sex has been made out, there can be no award of damages. In any event, there was very little evidence to support a claim for damages.
We heard evidence from Ms Binetti that she had had to pay the gap fee of $20 for the consultation with Dr Chung on 22 February. Despite the claim for financial loss, there was no other evidence concerning moneys that Ms Binetti had had to pay out directly as a result of the alleged sexual harassment or discrimination.
There was no evidence of the consequences of the alleged sexual harassment or discrimination for Ms Binetti, apart from some evidence that she may have had difficulty sleeping for a short period. In addition, in answer to a question from a member of the Tribunal, Ms Binetti said that she had resigned from a job obtained at a Fasta Pasta restaurant in August 2007, after 2 months there, because she "found it really hard working with a lot of males around" her. There was no medical evidence of psychological injury or ongoing stress suffered by Ms Binetti.
Conclusion
While we accept that Ms Binetti may have been very upset and may have felt shocked, offended and humiliated on 22 February 2006, we are unable to conclude that Ms Binetti has made out a case that she has been the victim of sexual harassment or discrimination on the ground of her sex.