Chand v State Rail Authority

[2007] NSWADT 90

CITATION:	Chand v State Rail Authority [2007] NSWADT 90
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Bimla Chand RESPONDENT State Rail Authority
FILE NUMBER:	051080
HEARING DATES:	6 November 2006, 9 November 2006, 10 November 2006, 13 November 2006, 15 November 2006, 24 November 2006
SUBMISSIONS CLOSED:	26 November 2006
DATE OF DECISION:	17 April 2007
BEFORE:	Ireland G - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Hiffernan N - Non Judicial Member
CATCHWORDS:	Sexual Harassment - In workplace - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Evidence Act 1995
CASES CITED:	Zhang v Blinds Pty Ltd (NSWADT 17 November 2006, unreported)
REPRESENTATION:	APPLICANT P Gormly of counsel RESPONDENT K Nomchong of counsel instructed by C Robinson, Clayton Utz
ORDERS:	1. The complaints of sexual harassment against three employees of the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.; 2. That four of the complaints of victimisation against the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.; 3. That the remaining complaints of victimisation against the respondent are not substantiated. Each complaint is dismissed.

Complaint Background

1 On 7 June 2005, the President of the Anti-Discrimination Board (ADB), under s 93(C) of the Anti-Discrimination Act 1977 (AD Act) referred to the Tribunal complaints by the applicant ‘alleging discrimination by her employer State Rail Authority on the ground of race and disability discrimination and sexual harassment.’ The covering letter to the report from the President stated ‘my report of the investigation of the complaint is attached. I also attach the documents that were obtained in the course of the investigation as noted in the List of Documents.’

2 The report of the President referred to the Tribunal three types of complaint described as (1) race; (2) sexual harassment and (3) disability. No claim of victimisation was included by the President in the matters referred to the Tribunal.

3 On page 4 of the report, the President stated: ‘On the basis of the allegations outlined in the Board’s letter of 22 August and 1 September 2003, and accepted by the complainant as forming the basis of her complaint, Ms Chand alleges that the State Rail Authority discriminated against her on the grounds of race and disability and has complained of sexual harassment in the area of employment …’

4 Earlier in the report the President had identified the allegations on the grounds of race and disability and sexual harassment from the original complaint made by the applicant to the ADB in a fax dated 18 December 2002; a narrative statement of the applicant contained in the written complaint form received by the ADB on 20 January 2003; and a letter from the applicant to the ADB dated 2 April 2003 which the Board described as ‘a further letter from the complainant providing additional information about her complaint.’ The letter was written by the applicant following a request from the ADB for the applicant to clarify the basis of her complaint.

5 At the beginning of the Complaint Summary accompanying the President’s report to the Tribunal, in referring to the first complaint from the applicant on 18 December 2002, the President referred to the allegations made by Ms Chand as allegations on the grounds of race, disability, ethno/religious background, sex, sexual preference and marital status and continued ‘and also complained of sexual harassment and victimisation.’

6 It is apparent from the Complaint Summary that on completion of the investigations of the complaints of the applicant, the ADB had confined the allegations of the applicant to the three items of complaint referred to the Tribunal.

7 Although the allegations made by the applicant to the ADB covered a period of time from mid-2001 to 30 January 2003, the Complaint Summary contains the following statement from the President of the ADB ‘on 2 February 2005 the Board wrote to the respondent to advise that it would accept the complainant’s allegations that relate to incidents that occurred after 18 June 2002 only.’ The parties and the Tribunal accordingly have confined the consideration of the complaints to the period from 18 June 2002 to 30 January 2003.

Identification of allegations of breaches of the AD Act

8 On 17 January 2006, the then solicitors for the applicant filed points of claim. The points of claim contained three allegations of incidents of sexual harassment and a claim of victimisation. It contained no allegation of racial or disability discrimination. The claim of victimisation related to seven instances of alleged complaints of breaches of the AD Act made by the applicant against various employees of the respondent and identified eleven items of detriment allegedly suffered by the applicant as a result of the seven instances of allegations of breaches of the AD Act. Following orders from the Tribunal, the solicitors for the respondent requested further and better particulars of the allegations in the points of claim. By letter dated 16 March 2006, the then solicitors for the applicant supplied further and better particulars of the allegations of sexual harassment and victimisation.

9 It is not disputed that the allegations that were brought before the Tribunal for determination were the allegations contained in the applicant’s points of claim as further particularised in the applicant’s solicitors letter of 16 March 2006.

10 The allegations for determination by the Tribunal do not contain allegations of discrimination on the ground of race or allegations of discrimination on the ground of disability, being two of the three items of discrimination referred to the Tribunal by the President of the ADB. The three claims of sexual harassment contained in the points of claim are the only claims consistent with matters referred to the Tribunal by the ADB. The claims of victimisation contained in the points of claim and particularised in the letter of particulars, is not a complaint that has been referred to the Tribunal by the ADB. If the situation is left on this basis, the Tribunal has no jurisdiction to consider or determine the claims of victimisation.

11 A substantial part of the evidence brought by each party to the Tribunal and subsequently made the subject of submissions by counsel for the parties, related to the claims of victimisation. It was assumed that the claims of victimisation were part of the complaint referred to the Tribunal by the ADB. The issue that the claim of victimisation was not part of the complaint referred to the Tribunal, was not raised with the Tribunal by the parties. The Tribunal has only discovered the issue when giving consideration to this decision. The position is clear from the material in the papers presented to the Tribunal, that in the circumstances, the Tribunal has no jurisdiction to determine the claims of victimisation.

12 As a great deal of effort has been put into the presentation and defence of the allegations of victimisation, the Tribunal has given consideration to the exercise of the power granted to it under s 103 of the AD Act to, on its own motion, amend the complaint by including the claims of victimisation.

13 Section 103 of the AD Act is in the following terms:

‘ 103 Tribunal may amend complaint

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.’

14 It is the view of the Tribunal that in the circumstances of this hearing, and in particular the extent of the evidence and submissions of the parties concerning the claims of victimisation, that this would be a proper circumstance in which the Tribunal could and should on its own motion amend the complaint by including those claims. Both parties have had ample notice of the claims of victimisation and of the details concerning the claims. Both parties have presented extensive evidence and submissions relating to the claims. In the circumstances, it is the view of the Tribunal that neither party would suffer prejudice by the Tribunal continuing to determine the claims of victimisation.

15 Under sub-s 2 of s 103 of the AD Act, the power of the Tribunal to amend a complaint by including additional complaints is limited to additional complaints that can be identified as included in the complaint ‘as investigated by the President.’ This limitation was applied by the Tribunal recently in its decision in Zhang v Blinds Pty Ltd (decision delivered 17 November 2006).

16 In considering a claim of victimisation under s 50 of the AD Act, the Tribunal may have regard to any detriment suffered by the person victimised as a result of certain stated actions of the person victimised including allegations by the person victimised that the discriminator or any other person has committed an act that would amount to a contravention of the AD Act. In the claims of victimisation made by the applicant, Ms Chand alleges a number of incidents where she alleges she made claims of discrimination against employees of the respondent and as a result of those allegations the respondent caused detriment to her. Her allegations of discrimination by employees of the respondent ranged over periods prior to her employment by the respondent on 17 April 2000 through to and subsequent to 30 January 2003. For the reasons expressed by the Tribunal in the decision in Zhang v Blinds Pty Ltd, in the exercise of its discretionary power to amend the complaint, the Tribunal is restricted by sub-s 2 of s 103 to include only a complaint included in the complaint investigated by the President of the ADB. As the President of the ADB has reported that it confined its investigation to the period from 18 June 2002 to 30 January 2003, the Tribunal may only amend the complaint by including complaints of victimisation in which the allegations of discrimination against employees of the respondent which it is alleged caused detriment to the applicant in terms of s 50 of the AD Act, are confined to complaints of victimisation referable to allegations made during the period of the complaint, that is allegations made by the applicant between 18 June 2002 and 30 January 2003. The Tribunal determines that in the circumstances of the complaints referred by the President of the ADB to the Tribunal, it would be a proper exercise by the Tribunal of its discretion to amend the complaints under s 103(2) of the AD Act by including claims of victimisation referred to in the Points of Claim filed by the applicant on 17 January 2003 but limited to claims of victimisation arising out of allegations of breaches of the AD Act by employees of the respondent between 18 June 2002 and 30 January 2003. The Tribunal accordingly directs that the complaints the subject of its consideration and determination include claims of victimisation limited in the manner described.

Factual Background

17 The applicant is a person of Indian nationality who migrated to Australia on 15 September 1991. She commenced employment with the respondent on 17 April 2000 as a permanent part-time Customer Services Attendant. The basic details of the history of her employment with the respondent is as follows:

October 2000 – December 2000: The applicant worked at the Marrickville Station reporting to Mr Joe Kadry and Mr John Pais.

22 January 2001 – 18 December 2002: The applicant was promoted to a Revenue Protection Officer (RPO) based at Sydney Central Business District. The appointment was preceded by a period of training for the new position.

Early August 2002: Applicant applied for retraining for the position of Trainee Manager.

26 August 2002: Applicant interviewed for position of Trainee Manager;

September 2002: The respondent announces that the Revenue Protection Unit (RPU) is to be dissolved. The RPU was finally disbanded in September 2004.

1 October 2002: Applicant meets with Mrs Pickburn for feedback re unsuccessful application as Trainee Manager.

9 October 2002: Applicant goes on stress leave.

15 October 2002: Applicant alleges she sent fax to Mr Platt (Director and General Manager for Security of the respondent). The fax states a long history of applicant’s dissatisfaction with her experiences at the workplace).

22 October 2002: Applicant sends fax advising stress leave extended following certificate from Dr Dong Tran.

29 October 2002: Dr Tran issues medical certificate to applicant certifying that she is unfit for work and diagnosing that she suffers from adjustment disorder with mixed anxiety and depression.

30 October 2002: Applicant submits worker’s compensation claim for stress leave. The application was rejected and applicant did not pursue the claim.

18 November 2002: Applicant meets with Mr Platt and others to resolve the applicant’s issues.

18 November 2002: Applicant returns to work from stress leave with restricted duties i.e. no direct contact with Mr Plichta or Mrs Narayan.

27 November 2002: Applicant makes application to Industrial Relations Commission concerning her alleged ongoing threatened dismissal. This application was dismissed on 19 December 2002.

3 December 2002: Applicant applies to the respondent, for redeployment.

18 December 2002: Applicant provides medical certificate from Dr Tran certifying the applicant fit for work with restriction that no contact with Mr Plichta or Mrs Narayan.

18 December 2002: The applicant stood down from her position pending location of suitable job to meet restrictions in Dr Tran’s certificate.

18 December 2002: Applicant lodges first complaint with the ADB. The complaint consists of a copy of the fax allegedly sent to Mr Platt on 15 October 2002.

24 December 2002: Applicant complains of treatment by Mr Metcalfe when reporting for work.

18 December 2002 – 30 May 2003: Applicant on light duties at various locations.

16 July 2003: Applicant instructed by respondent to consult Dr Gordon Davies, psychiatrist. Dr Davies certifies opinion that applicant suffers from probably paranoid personality disorder.

7 January 2004 – September 2004: Under instructions from the respondent, the applicant consulted with five psychiatrists on six occasions.

January 2005: The applicant’s employment with the respondent was terminated. The applicant states that the termination was on the basis of mental illness, diagnosed by Dr Davies in January 2004.

18 During the period of her employment with the respondent, it was stated by the respondent that the applicant made a total of 167 complaints in which the applicant alleged that she had been harassed or otherwise was subjected to mistreatment at the hands of employees of the respondent. Only some of the total number of complaints, were of a formal written nature. The complaints included periods outside the complaint period for the purpose of the inquiry by the Tribunal. The Tribunal has not had regard to nor have the details of a number of the complaints been brought before the Tribunal. The Tribunal has accordingly confined its consideration to those complaints which fell within the complaint period or where it was necessary to have regard to incidents outside the complaint period and the consequences of the incidents flowed through into that period. In addition to complaints made to the respondent, the applicant made complaints to ICAC, the New South Wales Ombudsman and ASIC. Details of those complaints were not put before the Tribunal and the Tribunal has not given consideration to those complaints.

19 For the reasons already expressed, the Tribunal has confined its consideration of the complaints of the applicant to three claims of sexual harassment and to the claims of victimisation, each of which occurred during the complaint period.

Complaints of sexual harassment

20 The Points of Claim filed by the applicant and supported by the further particulars supplied by the applicant relate to three claims of unlawful sexual harassment under s 22B of the AD Act. The applicant has not specified under what sub-section or sub-sections of s 22B her claims is made. The only sub-paragraph of s 22B that is applicable to the applicant is sub-section 2 which is in the following terms:

‘(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.’

21 The Points of Claim set out the allegation of sexual harassment as follows:

‘The applicant alleges breaches of s.22B of the Anti-Discrimination Act in that she was sexually harassed by employees of the respondent.

Particulars of harassment

(a) The applicant alleges that she was sexually harassed by Mr Peter Dempsey in that he asked her, including after she had specifically requested that he desist, about her having sex, her virginity and whether she had reached menopause. In addition the applicant alleges that Mr Dempsey hit her in the genitals with an infringement book.

(b) The applicant alleges that she was sexually harassed by Mr John Hinien in that he continued to read pornographic magazines in her presence, despite her request that he stop.

(c) The applicant alleges that she was sexually harassed by Mr Jan Plichta in that he brushed her buttocks with his hand.’

22 In each of the three complaints of sexual harassment, the allegation relates to the actions of three of the employees of the respondent. In view of the manner in which the allegations are phrased, sub-s 2 of s 22B is the only appropriate sub-paragraph in which those allegations of sexual harassment can be considered.

23 Once it is recognised that the claims of unlawful sexual harassment are made under sub-s 2 of s 22B, a fundamental flaw exists in the manner in which the applicant has presented the claims for consideration by the Tribunal. None of the three employees against whom the allegations of sexual harassment are made, have been made parties to the complaints being brought before the Tribunal. In these circumstances, if the Tribunal were to find that those claims or any of them were substantiated, the finding would need to be made against each of the employees against whom a finding of unlawful sexual harassment was made. As, in these complaints, the employees are not parties to the complaints before the Tribunal, the Tribunal is unable to make any orders that may flow from the finding.

24 In these complaints of unlawful sexual harassment, the respondent, being the employer of each of the employees against whom the allegation is made, is the only party. In order for the respondent, as the employer, to be held liable for any finding of unlawful sexual harassment against an employee, the applicant would need to rely on s 53 of the AD Act which, in the circumstances described in that section, renders an employer vicariously liable for acts of employees in contravention of the AD Act. The applicant has not sought to make the employer, the respondent, liable under s 53.

25 This issue was raised by the respondent in its submissions. It was also a matter referred to by the Tribunal during the proceedings. It is a matter that was not addressed by the applicant in its submissions nor did the applicant seek to make any amendments to the applicant’s claims during the hearing.

26 This flaw in the presentation of the applicant’s case is not, in the view of the Tribunal, a matter which can be dealt with by the Tribunal on its own motion under s 103 of the AD Act. The complaint of sexual harassment against the employees named in paragraph 3 of the Points of Claim, has already been identified and formulated by the applicant. The extension of such a claim, by including a claim against the respondent under s 53 of the AD Act, would not, in the view of the Tribunal, be an appropriate exercise of its discretion under s 103, nor would the Tribunal be persuaded that in the history of the development of these claims of sexual harassment, it is appropriate at this stage of the proceedings to allow such an amendment to the claims of the applicant.

27 The failure of the applicant to join the individual employees as parties to the proceedings before the Tribunal, has the result that even if a finding favourable to the applicant were to be made by the Tribunal against any one or all of the employees, the Tribunal would be unable to make an order under s 108 of the AD Act. As no claim for liability has been made against the respondent in relation to the claims of sexual harassment, the Tribunal would be unable to make an effective order under s 108 against the respondent. In these circumstances the Tribunal is left without the ability to make an effective order even if it should find in favour of the applicant in respect to any of the allegations of sexual harassment.

28 As charges of unlawful sexual harassment under s 22B are of a serious nature and having regard to the extent of the evidence relating to the allegations concerning the three employees, the Tribunal considers it should determine whether the applicant has substantiated her claims notwithstanding that the Tribunal if it made a positive finding, is unable to make an effective order consequent on such a finding. The Tribunal accordingly has examined the allegations of unlawful sexual harassment and sets out its conclusions relating to those claims.

29 (a) Allegations against Mr Peter Dempsey. The allegation in the Points of Claim is in the most general terms. More details of the allegations are set out in the Further Particulars supplied by the applicant’s then solicitors on 16 March 2006. Six items of incidents are described in the Particulars under the heading ‘Between about March 2001 and August 2001, the applicant was subjected to the following incidents:’ As the complaint period for the Tribunal commences on 18 June 2002, each of the six incidents described in the Further Particulars is outside that period. Those claims are accordingly outside the period for which the Tribunal has jurisdiction to examine.

30 In the submissions on behalf of the applicant, it is pointed out that although the incidents involving Mr Dempsey occurred prior to the closed period, the applicant complained about these problems several times during the closed period. It is submitted that the fact that complaints concerning the incidents were made during the complaint period is sufficient to bring the allegations of sexual harassment within the jurisdiction of the Tribunal.

31 The Tribunal rejects this submission. Sub-section 2 of s 22B renders unlawful acts of sexual harassment by a fellow employee. The sub-section requires a finding by the Tribunal that allegations of acts of sexual harassment are substantiated. It is the acts or incidents of sexual harassment which are the focus of the sub-section. The relevant time for determining the inclusion of an allegation of sexual harassment within a closed period is the date on which it is alleged the sexual harassment occurred and not the date on which the applicant complained about the act of sexual harassment. In these claims by the applicant, it is made clear in the report by the President of the ADB to the Tribunal that the date of the incidents of the claims is the relevant date for determining whether a claim came within the closed period. In his report, the President states ‘On 2 February 2005 the Board wrote to the complainant to advise that it would accept only those allegations relating to incidents that occurred after 18 June 2002.’ In its final letter to the applicant concerning the question of whether or not the President would accept aspects of the complaints that were out of time, the President stated ‘I have considered carefully the information you have provided and I have decided not to accept the aspects of your complaint that occurred before 18 June 2002 because “good cause” has not been shown.’

32 It is the view of the Tribunal that it has no jurisdiction to determine the allegations of sexual harassment made by the applicant against Mr Peter Dempsey. It should be stated that in his evidence before the Tribunal Mr Dempsey denied that he had made the statements to the applicant which she alleged constituted the acts of sexual harassment.

33 There is an issue as to the sincerity of the applicant’s complaint against Mr Dempsey. This is best summed up in the statement made by the applicant in her original complaint to the ADB on 18 December 2002: ‘Since then I have to mention that Mr Dempsey has established a professional relations with me. The issue here is not Mr Dempsey but the management’s attempt to brush aside trouble instead of dealing with it efficiently and promptly to boost the productivity of the organisation.’

34 (b) Claim of sexual harassment by John Hinien. The Further Particulars supplied in relation to this claim relates to the period ‘about March 2001 and October 2002.’ It is necessary to set out the further particulars relating to this complaint:

(i) Mr John Hinien continued to read pornographic magazines in the direct vicinity of the applicant, notwithstanding the applicant’s direct request to him and others that he and others desist from reading such material in her presence;

(ii) Notwithstanding that he knew that the applicant objected to and was offended by his continued reading of pornographic magazines in his presence, John Hinien read such magazines while seated next to her. Such magazines included pictures of women naked and in sexual poses. When the applicant objected, John Hinien said to her words to the effect of:

“You are just a frustrated spinster” ; and, on another day

“If someone were to marry Bimla he would seek a divorce in less than 5 minutes”.

35 The evidence of the applicant does not support the timeframe – March 2001 to October 2002 – specified in the further particulars of the applicant. The only occasion about which the applicant gave evidence in chief was on an occasion on 23 August 2002. The first occasion on which the applicant referred to the claim of sexual harassment against Mr Hinien is in a memo dated 25 September 2002, approximately one month after the alleged event. That memo was addressed to Mr Jan Plichta, the Co-ordinator of the Revenue Protection Unit and the memo was copied to Ms Barbara Phillips (Human Resource Manager) and Mr Mark Karouche (Chief Transit Officer, Protective Services). The opening paragraph of the memo states: ‘This is to inform you that I have certain outstanding issues with John Hinien who complained against me as a pre-emptive move to protect himself and has since been maligning me. Below are outlined some of the issues that I have confronted Mr Hinien about but he ignored them.’ The memo is a two-page document and it relates a number of events in which the applicant alleges that Mr Hinien carried out his duties in an improper manner and describes the occasions in some detail. In chronological order of the incidents, the following paragraph is included on the second page of the memo: ‘On 23 August I saw Mr Hinien reading a pornography magazine at about 12.45pm which he does quite often in the office. This is despite my raising objection to as I look upon it as sexual harassment.’ As a result of the memo, Mr Plichta called a meeting with Mr Hinien and Ms Chand in an endeavour to mediate the issues between them.

36 In the affidavits of the applicant before the Tribunal, she refers only to the incident on 23 August 2002. In cross-examination, mainly in answer to questions from the Judicial Member of the Tribunal, the applicant amplified the circumstances of the occasion on 23 August 2002. She stated that she and Mr Hinien were sitting at a long desk in the depot office at Surry Hills. She stated that she was sitting next to Mr Hinien and that two other employees were also sitting at the table which she described as a desk. She stated that there were four to five chairs around the table and the chairs were approximately five metres apart. She stated that she was filling out infringement notices for half an hour and during that period Mr Hinien was reading a magazine. The applicant stated that she said to Mr Hinien ‘Don’t read those magazines in the office’ and that Mr Hinien first ignored her and then he said ‘It is none of your business what I do.’ She stated that Mr Hinien continued reading the magazine and that he then left.

37 During this examination, the applicant also referred to an occasion at the respondent’s offices at 72 Mary Street, Surry Hills early in June 2002 when Mr Hinien was reading what she described as pornography magazines. The applicant also referred to an occasion in the week of 26 August 2002 at Surry Hills in the same office as the occasion on 23 August. She said on this occasion she was sitting as a rectangular table which was four to five metres long and one and a half metres wide. She stated that she was sitting diagonally opposite Mr Hinien and that they were facing each other. She said there were five chairs at the table. She said Mr Hinien was reading a magazine and that she looked up and saw that the magazine had explicit pictures of women. She stated that there was another employee at the table at the time. She said that she was sitting at the middle of the table and Mr Hinien was at the opposite end of the table and they were approximately two metres apart. She said on this occasion she and Mr Hinien did not speak.

38 The applicant also referred to a third incident in October 2002 which took place at Surry Hills at the rectangular table. The applicant said that she was passing by the table and saw that Mr Hinien was sitting at the table and saw that he was reading a magazine. The applicant said she saw that the centre spread of the magazine showed pictures of naked women. She said on this occasion that she and Mr Hinien did not speak.

39 The evidence does not show that the applicant made specific complaints either to her superiors or to the ADB concerning the incidents she described in early June 2002 or in the week of 26 August 2002 or in October 2002. The first occasion that these incidents were referred to was in replies to questions by the Judicial Member during the applicant’s examination before the Tribunal.

40 The Tribunal considers that it is relevant to consider that on the only occasion that the applicant complained about an incident concerning Mr Hinien’s reading of pornographic magazines in her presence was the short reference to the incident on 23 August, which she made in her memo to Mr Plichta on 25 September 2002. Although there were subsequent meetings involving Mr Plichta and Mr Hinien, the applicant made no reference to the other occasions that she referred to in her evidence. The applicant makes no reference to those other occasions in her complaint to the ADB. It is also relevant to have regard to the evidence of the applicant when she stated that the reason for her writing the memo of 25 September 2002 to Mr Plichta was to answer what she considered to be a complaint made by Mr Hinien concerning her, in a document he wrote to Mr Plichta dated 24 August 2002. There had been a history of confrontation between the applicant and Mr Hinien and on 24 August 2002 Mr Hinien wrote a memo addressed to Sue Narayan (his team leader) in the following terms:

‘I John Hinien would please like to request that I may be placed into an alternative group e.g. that you may see fit.

I am requesting this due to the fact that I am having great difficulty in dealing with and working with a fellow RPO Bimla Chand.

I don’t wish to badmouth people or speak ill of anyone however in my three years as an RPO I have never encountered a colleague of this nature. I regard myself as an officer with a professional manner and customer service approach. I take pride in the level-headed and polite approach to my duties and wish to continue my duties without the constant unprovoked remarks and continuous negativity and rudeness of this colleague.’

41 The applicant considered this application for transfer as a formal complaint against her by Mr Hinien. Her memo of 25 September 2002 is her response to Mr Hinien’s remarks in his transfer application.

42 In his response to the Tribunal, Mr Hinien denied having read pornographic magazines at any time whilst at work. His affidavit is emphatic in his denial. There is a conflict in the evidence between the applicant and Mr Hinien. The nature of the presentation of Mr Hinien’s evidence before the Tribunal places the Tribunal in a difficulty in accepting the veracity of Mr Hinien’s denial. Mr Hinien lodged with the Tribunal an affidavit which he swore on 17 October 2006. Mr Hinien was not available during the days of the hearing to be present to give evidence and to be cross-examined. It was explained to the Tribunal that Mr Hinien was on a holiday which he had pre-planned and that he was not able without considerable inconvenience either to postpone that holiday or to interrupt it to return to Sydney to give evidence. Subsequently it transpired that Mr Hinien was on a touring holiday in Victoria. In the face of objections from counsel for the applicant, the Tribunal acceded to the request from counsel for the respondent for Mr Hinien to give his evidence before the Tribunal by way of telephone which was amplified in the hearing room. Where there is a distinct conflict in material evidence, that manner of giving evidence deprives the Tribunal of the opportunity of observing the witness during his examination and cross-examination and prevents the Tribunal from forming any judgment as to the demeanour of the witness during this process. As a result, the Tribunal, where there is a conflict in the evidence between Ms Chand and Mr Hinien, would give preference to the evidence of the applicant.

43 Accepting the evidence of the applicant where it conflicts with the evidence of Mr Hinien, the Tribunal has evidence, uncorroborated, that there were three occasions on which Mr Hinien read pornographic magazines in the presence of the applicant. On one of those occasions the applicant requested Mr Hinien to desist from reading such material.

44 Section s 22A of the AD Act defines sexual harassment as follows:

‘ 22A Meaning of “sexual harassment”

For the purposes of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.’

45 The section requires an objective assessment based on the reasonable person test as to whether in all the circumstances a reasonable person would anticipate that the other person would be offended, humiliated or intimidated by the unwelcome conduct of a sexual nature. When regard is had to all the circumstances relating to the incidents described by the applicant concerning Mr Hinien’s conduct in reading magazines depicting naked women while sitting at the same table as the applicant, consideration must be given to the circumstance that the applicant did not react in relation to this conduct in a manner that would be expected of a person who was offended, humiliated or intimidated by the conduct. The applicant only complained in specific terms about the incident on 23 August. She left it until 25 September 2002 to mention it in a memo in which she referred in much more detail to other incidents concerning Mr Hinien about which she complained in that memo. The applicant only referred to the incidents in early June 2002 and in the week of 26 August 2002 and in October 2002 in an examination during her evidence before the Tribunal.

46 Applying the objective test as to whether a reasonable person in the position of Mr Hinien would have anticipated that the applicant would be offended, humiliated or intimidated by his actions in reading a pornographic magazine in the circumstances described by the applicant, the Tribunal has had regard to the first instance in which the applicant alleges Mr Hinien read a pornographic magazine while sitting at a large table at which the applicant was also sitting, in June 2002. The applicant did not state that on this occasion she spoke to the applicant. The Tribunal is not satisfied that those circumstances would lead a reasonable person in Mr Hinien’s position to anticipate that the applicant would be offended, humiliated or intimidated.

47 The incident on 23 August 2002 is different to the occasion early in June 2002 in that on this occasion the applicant did express her objection to Mr Hinien’s conduct in reading the magazine. However, the applicant did not express to Mr Hinien that she was objecting on a personal basis but rather that she was objecting to him reading the magazine ‘in the office.’ In view of the antagonistic history between the applicant and Mr Hinien, a reasonable person in the circumstances would not have interpreted the applicant’s objections as indicating that she was offended, humiliated or intimidated. In the view of the Tribunal, Mr Hinien’s interpretation of Ms Chand’s objection was confirmed by him applying on the following day for a transfer to an alternative group as he was ‘having great difficulty in dealing with and working with a fellow RPO Bimla Chand.’ The fact that the applicant only complained about Mr Hinien’s conduct on 23 August in her memo to her supervisor on 25 September 2002, and then only in the most general terms, indicates that the applicant did not regard the incident on 23 August 2002 as a serious offence. The occasion that she describes that occurred on the week of 26 August 2002 is in a similar category to the first occasion although this followed the occasion on 23 August 2002 in which Ms Chand had raised a specific objection to Mr Hinien reading an offending magazine. The Tribunal however is not able to make a finding that substantiates a claim of sexual harassment based on the applicant’s evidence of this occasion, especially as the applicant had not raised a complaint concerning the incident until examined by the Judicial Member during her evidence before the Tribunal.

48 It is the view of the Tribunal that the applicant has not substantiated to the degree necessary to satisfy the Tribunal in relation to a serious charge of racial discrimination that her claims relating to the three incidents alleged by her concerning Mr John Hinien, has been substantiated.

49 (c) Claim of sexual harassment against Mr Jan Plichta. This allegation is identified in the Points of Claim in the following terms: ‘The applicant that she was sexually harassed by Mr Jan Plichta in that he brushed her buttocks with his hand.’ The Further Particulars supplied by the then solicitor for the applicant amplifies this item in the following terms: ‘On or about 3 December 2002 Jan Plichta brushed his right hand across the applicant’s left buttocks.’

50 The evidence concerning this complaint is not satisfactory. Mr Plichta filed two affidavits. The first affidavit was sworn on 17 October 2006 and filed with the Tribunal on the same day. The second affidavit was completed by Mr Plichta on 26 October 2006 and filed on the same day with the Tribunal. At a case conference just prior to the hearing the respondent gave notice that it would apply under s 67 of the Evidence Act 1995 that in the circumstances relating to Mr Plichta’s mental condition that his affidavits be admitted and that he be excused from attending for the purposes of cross-examination. Although the Tribunal is not bound by the rules of evidence, and in the face of an objection by counsel for the applicant, the Tribunal considered that it was constrained by the medical certificates exhibited to the Tribunal on behalf of Mr Plichta and the Tribunal agreed to accept the affidavits which he had filed with the Tribunal. The evidence relating to Mr Plichta’s mental condition was two certificates from Dr Elizabeth O’Brien. The first certificate was dated 2 November 2006 and referred to two medical certificates provided to her by Mr Plichta’s regular general practitioner, Dr Ray Silnes. Copies of those certificates were not provided to the Tribunal. A certificate from Dr Elizabeth O’Brien states:

‘I would endorse and support Dr Silnes’ recommendations and add my own recommendation that Mr Plichta take no further part in these proceedings. Mr Plichta is becoming symptomatic in response to these stresses and hence is at risk of recurrence of his illness. This is occurring despite compliance with long term prophylactic medication.’

51 A second certificate from Dr O’Brien dated 3 November 2006 was exhibited to the Tribunal. That certificate reads:

‘This certificate follows a certificate dated 2 November 2006 and further elaborates on Mr Plichta’s medical condition. When seen yesterday, Mr Plichta reported and demonstrated symptoms consistent with the early stages of his illness, namely, poor sleep necessitating reintroduction of hypnotic medication (Normison) and adjunctive anti-psychotic medication (Zyprexa), increased sweating, anxiety, pre-occupation with somatic illness (commonly known as hypochondriasis) and difficulty maintaining concentration because of intrusive worrying about the court proceedings.

In my opinion, based on Mr Plichta’s past history and familiarity with his pattern of illness, he is at risk if he participates in these proceedings of a recurrence of his illness with worsening anxiety, inability to function in his workplace, depression and potentially therefore hospitalisation.’

52 In his affidavits Mr Plichta denies that the event occurred on 3 December 2002, as described by the applicant and which she alleges constitutes sexual harassment. Mr Plichta’s evidence was that:

‘the day Ms Chand alleged that this incident took place she was at Petersham College from 12.30pm to 1.30pm.

Ms Chand later claimed that the incident occurred at 1.30pm on the following day. However on this day, I had left work early and was no longer on duty at 1.30pm. I informed the SRA’s Workplace Conduct Unit (WCU) of all these matters (referred to below).’

53 Mr Plichta claimed in his affidavit that he believed the reason the applicant made the harassment claim was because she was upset by his decision not to punish Mr Hinien and that she was not satisfied that Mr Plichta had not come down harder on Mr Hinien. He stated ‘Ms Chand’s allegations about my behaviour towards her were entirely untrue and has caused me a great deal of stress and upset.’

54 Although the Tribunal admitted the two affidavits lodged by Mr Plichta, the Tribunal is faced with a position similar to the evidence concerning the applicant’s allegations of sexual harassment against Mr Hinien, by the direct inconsistency between Ms Chand’s evidence and Mr Plichta’s denial of the events as described by her. For the same reasons expressed in relation to the evidence of Mr Hinien, the Tribunal considers that where the evidence of the applicant and the evidence of Mr Plichta conflict, in the absence of the ability to observe Mr Plichta and with the lack of any ability to cross-examine Mr Plichta, the Tribunal would prefer the evidence of the applicant to the evidence of Mr Plichta.

55 The nature of the evidence of the applicant is not satisfactory in her descriptions of the detail of the incident involving Mr Plichta. In the narrative description forming part of the formal complaint document filed with the ADB on 20 January 2003, the applicant refers to the incident in these terms: ‘On 3/12/02 my boss Jan Plichta touched me on my left buttocks with his left hand at the lights. When I confronted him, he denied it saying that there were no witnesses. I did not complaint about it initially, but on the advice of my solicitor I did complain about sex discrimination.’ In her affidavit exhibited to the Tribunal the applicant states ‘On or about 3 December 2002 Mr Plichta made unwelcome physical contact with me by touching my bottom.’ The applicant in the affidavit refers to a complaint she lodged with Barbara Phillips, the Human Resource Manager of the respondent. This complaint was contained in a memo dated 12 December 2002 and the opening paragraph states ‘I have just been advised by my solicitor that I need to report the incident of sexual harassment by Jan Plichta on 3/12/02 at approximately 4.00pm. Although I made a note of the incident in my diary I did not report it as there were no witnesses. About 4.00pm I was waiting to cross the road on Elizabeth Street to go to the office. I felt a hand on my left buttocks. I turned around and saw Jan’s right hand on it and he quickly removed it as soon as he saw me notice his hands. I was numb with shock and anger. As the lights turned green we both crossed the road and walked to the office.’ The memo then relates a conversation that the applicant alleges took place concerning the incident between she and Mr Plichta. As a result of that complaint an investigation of the incident was made by the respondent’s Workplace Conduct Unit. By a letter dated 7 May 2003, the Manager of that Unit advised Ms Chand ‘As a result of the investigation, the allegation concerning the incident on 3 December 2002 was not substantiated.’ The applicant was not able to produce the diary in which she stated she made notes of the incident.

56 In evidence given before the Tribunal, the applicant stated that on 3 December 2002 she was standing at the traffic lights on the corner of Elizabeth Street and Devonshire Street, Sydney. She was waiting for the lights to turn green and she did not see Mr Plichta come from her left side. She stated that he placed his right hand on her left buttock. The applicant stated that Mr Plichta had a David Jones’ shopping bag in his right hand and he touched her with the right hand with the bag in it. She stated that Mr Plichta’s hand was closed as it was holding the bag. She stated that Mr Plichta’s hand touched her with more than a light touch although it did not push her off balance. She also stated that the shopping bag at the time touched her just below her backside.

57 The more detailed evidence of the applicant given before the Tribunal was not available to Mr Plichta to comment on nor was he available to be cross-examined in relation to that evidence.

58 The Tribunal finds that on 3 December 2002, Mr Plichta was present at the intersection of Elizabeth Street and Devonshire Street, Sydney at the time the applicant was waiting to cross at the lights and that Mr Plichta did, with a light touch, knock his right hand against the left buttock of the applicant whilst Mr Plichta held a shopping bag in that hand. The Tribunal also finds that the applicant did not complain about this incident until approximately two and a half weeks later and then only at the instigation of her solicitor. In these circumstances it is the view of the Tribunal that within the meaning of sexual harassment in s 22A of the AD Act, the incident cannot be classified as conduct of a sexual nature nor did it occur in circumstances in which a reasonable person would have anticipated that the applicant would be offended, humiliated or intimidated. The fact that the applicant did not report the matter of her volition and then only after two and a half weeks is an indication of the lack of her feeling of offence, humiliation or intimidation.

59 The Tribunal concludes that the evidence is not sufficient to substantiate a claim of sexual harassment by Mr Plichta against the applicant.

Summary of complaints of sexual harassment

60 In summary, it is the view of the Tribunal that the claims of sexual harassment against the respondent cannot be maintained in the absence of a claim of vicarious liability under s 53 of the AD Act based on contraventions of that Act by its employees.

61 In relation to the three claims of sexual harassment against Mr Dempsey, Mr Hinien and Mr Plichta, it is the finding of the Tribunal that each of those claims has not been substantiated.

62 The Tribunal accordingly directs that each of the claims against the respondent be dismissed.

Complaints of victimisation

63 Paragraph 4 of the Points of Claim contain 11 items where it is alleged the applicant suffered detriment which was causally linked to complaints she made to her supervisors, being employees of the respondent, and that those complaints related to allegations that the applicant had been either racially discriminated against or had been sexually harassed by employees of the respondent.

64 Paragraph 4 of the Points of Claim contain seven separate instances when, it is alleged, the applicant made complaints to the supervisors of the respondent. The applicant claims that the detriments she suffered resulted from the complaints to her supervisors and that she was victimised under s 50 of the AD Act.

65 In considering the complaints of victimisation, a preliminary issue is whether and to what extent any of the seven incidents of complaints occurred within the complaint period that is, between 18 June 2002 and 30 January 2003. The allegations of victimisation which it is claimed arise out of the seven instances of complaint are each related to conduct which falls within s 50(1)(c) which renders it unlawful for a person to subject another person to any detriment in any circumstances on the grounds of the person victimised has …

‘(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act …’

66 The submission of the respondent is correct in that it is established that it is not necessary for the alleged conduct in s 50(1)(c) to have occurred within the complaint period. The applicant is able to rely on complaints made at any time prior to the complaint period but it is necessary for the applicant to prove that the detriment occurred within the complaint period. This is the general rule that would apply to most complaints of victimisation. In relation to the complaints in this matter, for the reasons expressed earlier in this decision, in exercising its discretion under s 103(2) of the AD Act, it was necessary to restrict the claims of victimisation to claims which arose within the period investigated by the President of the ADB. This restriction overrides the more general position that victimisation claims can be considered whenever they occur provided the detriment is suffered within the complaint period. In the result in this matter, the claims of victimisation that are to be considered by the Tribunal are limited to claims where the conduct occurred within the complaint period and the detriment also occurred within that period. This has the effect of restricting the seven instances of alleged conduct set out in paragraph 4 of the Points of Claim.

67 Of the seven incidents involving complaints by the applicant of contraventions of the AD Act by employees of the respondent, the following analysis excludes the allegations of contraventions occurring outside the complaint period.

68 The references relate to the relevant items in paragraph 4 of the Points of Claim and the dates referred to are the dates contained in the letter of Further Particulars:

4(a) The complaints were made on 6 April 2000.

4(b) The complaint to Mr Plichta was made on or about 15 July 2001 concerning Mr Peter Dempsey.

The referral of the complaint by Mr Plichta to Mr Abel occurred in February 2002.

The complaint to Mr Karouche was made in about March 2002.

The complaint to Mr Platt is alleged to have been made in October 2002. (This complaint will be referred to in more detail later).

4(c) The complaints were made in November 2000.

4(d) The complaints were made in about November 2000.

4(e) The complaints, concerning Mrs Nirmala Joshi, to Mr Plichta were made in March 2002. He subsequently referred the complaints to Mr Mark Abel and Mr Karouche in September 2002. (These complaints will be referred to later).

4(f) The complaints were made to Mr Platt in October 2002 and again in November 2002. (These complaints will be referred to later).

4(g) The complaints made to Mr Plichta were made in early October 2002 and then made to Mr Platt and Ms Phillips on 15 October 2002 and again in November 2002. (These complaints will be referred to later).

69 The remaining allegations of victimisation are confined to the following:

1. Detriment following complaint to Mr Kevin Platt, Director and General Manager for Security of the respondent, arising out of a complaint allegedly made to Mr Platt on 15 October 2002 and at a meeting with Mr Platt and others on 18 November 2002.

2. Detriment to the applicant arising out of the referral in 2002 by Mr Plichta to Mr Mark Abel and Mr Mark Karouche of complaints concerning Mrs Nirmala Joshi, made to Mr Plichta in March 2002.

3. Detriment arising out of complaints made to Mr Plichta by the applicant in early October 2002. These complaints were part of the complaints which the applicant alleges were referred to Mr Platt and to Barbara Phillips on 15 October 2002 and were again referred to in a meeting on 18 November 2002.

70 Items 1 and 3 relate to the applicant’s allegations that she referred to Mr Platt by way of a fax on 15 October 2002, a fax containing a long history of the applicant’s complaints since the commencement of her employment with the respondent. There is a direct conflict in the evidence of the applicant and of Mr Platt concerning the sending and receipt of that fax by Mr Platt. The fax is a 14-page document and describes in detail the history of the applicant’s adverse experiences during her employment with the respondent. The document refers to instances of sexual harassment and discrimination. It is headed ‘Subject: Harassment and discrimination at workplace’. The document is addressed to Mr Kevin Platt with a copy to Mr George Panigiris, the lead organiser of the applicant’s union. The fax is dated 15 October 2002. The fax was not referred to by the applicant in her main affidavit filed in these proceedings. The only reference in that document is to a letter sent by the applicant on 22 October 2002 to Ms Barbara Phillips, the Human Resource Officer, with a copy to Mr Platt and to others. The subject of that letter was ‘Return to work’. The applicant’s affidavit also contains a paragraph referring to a meeting on 18 November 2002 with Mr Platt, Ms Phillips and Mr Panigiris. Subsequent to the filing of the applicant’s affidavit with the Tribunal, Mr Platt filed an affidavit with the Tribunal dated 18 October 2006. In that affidavit Mr Platt denied having received a complaint from the applicant alleging that she had been sexually harassed by Peter Dempsey.

71 The applicant then filed with the Tribunal an affidavit in response, on 9 November 2006. In that affidavit the applicant stated ‘I faxed him (Mr Platt) the copy of the same complaint that I have sent to the Anti-Discrimination Board on 18 December 2002. His secretary Alex Hart confirmed over the phone the receipt of the fax.’

72 In her evidence before the Tribunal, the applicant stated that on 9 October 2002 she saw Mr Panigiris who suggested that the applicant arrange a meeting with Mr Platt. She stated that she then went to Mr Platt’s secretary and requested an appointment with Mr Platt. Later in her evidence the applicant confirmed that she had sent the memo of 15 October 2002 to Mr Platt but had received no response.

73 Mr Platt, in cross-examination before the Tribunal, stated if his secretary who had worked with him for three years, had received the fax she would have referred it to Mr Platt if she considered it required his attention. He expressed the view that the memo of 15 October 2002 was a document which his secretary would have referred to him. He stated that he would have recalled the memo if he had seen it especially because of the allegations of sexual harassment and discrimination which it contained. Mr Platt said the first time he saw the fax was a couple of weeks before the hearing when it was shown to him at the office of the solicitors for the respondent.

74 A copy of the fax dated 15 October 2002 was sent by fax to the ADB by the solicitor then acting for the applicant, on 18 December 2002. The accompanying cover sheet to that fax stated ‘Please find following discrimination complaints against SRA and persons nominated in it. See (? indecipherable) correspondence, sex, race, age and disability discrimination. The fax attached the 14-page fax dated 15 October 2002. The ADB accepted that fax as the initiating complaint from the applicant. On the top of the first page of the fax of 15 October 2002, faxed to the ADB by the applicant’s solicitor, is written the words in handwriting ‘Not to be given to SRA yet – want to wait until after mediation.’ It is not clear from the evidence in whose handwriting that notation was written.

75 The reference to mediation is substantiated in a memo dated 17 October 2002 which was sent by the applicant to Mr Platt under the heading ‘Extension of stress leave’. In that memo the applicant stated ‘This is to inform you that I have seen the psychiatrist Dr Dong Tran today. Dr Tran has extended my stress leave until 22/10/02 when I have to see him again for further review. However I am quite willing to attend any mediation that you may organise in the meantime. I understand that you are trying to engage an external mediator to resolve the matter and help me return to work as soon as possible. I will be much obliged if you would fax me the arrangements as soon as possible. …’ The applicant had commenced stress leave on 8 October 2002 which continued until her return on 18 November 2002. On 18 November 2002 at approximately 11.00am the applicant attended a meeting in Mr Platt’s office at which were present Ms Phillips and Mr Panagiris.

76 The applicant referred to the meeting in her evidence. She said that at the meeting she referred to the fax of 15 October 2002 and raised issues concerning the ongoing harassment she was suffering. She said she did not receive any response although Ms Phillips said ‘There is always two sides to a story.’ She also stated that Mr Platt said ‘I am aware of the complaints, I will look into them.’

77 In his evidence concerning the meeting, Mr Platt stated that he did not see the fax of 15 October 2002. He stated that if he had seen the fax it would have rung alarm bells. He said he did not recall Mr Dempsey’s name being mentioned at the meeting. He said that it was the first occasion on which he became aware that the applicant had made complaints concerning Mr Plichta and against other employees. He could not recall any complaint concerning the Olympic Park staff. He stated that he interpreted the applicant’s concerns as relating to personality clashes and not relating to harassment. He stated that after the meeting he spoke to both Mr Plichta and Mr Abel. Mr Platt stated that he said to the applicant that he would like to wipe the slate clean and expected that the applicant would re-enter the workplace on the basis of it being harassment free. He said that he suggested that Ms Phillips and Mr Panagiris work together to re-establish the applicant in the workplace and that he expected Ms Phillips would ensure that the applicant went back to an harassment-free environment.

78 Mr Platt also stated that he was aware at the time that RPU was not functioning adequately and he was concerned about its management. He described the position as a problem at the grass roots level and that he was not surprised of an investigation of complaints of corruption at the Marrickville Station. Mr Platt stated that the RPU was disbanded in September 2004. He said at that time each of the officers in that Unit were given the opportunity to be either redeployed or retrenched.

79 The Tribunal would have been assisted in determining the correct version of the evidence of the applicant and Mr Platt as to whether at the meeting on 18 November 2002 the applicant produced or referred to the fax which she alleges she sent to Mr Platt on 15 October 2002, by the evidence of the two other witnesses at that meeting, namely, Ms Phillips and Mr Panagiris. Neither party called those witnesses nor was there any evidence by way of affidavit from those persons. No explanation was given to the Tribunal for the absence of evidence from them.

80 As the applicant has the onus of substantiating her claims, and having regard to the conflict in the evidence between her and Mr Platt and taking account of the notation at the top of the first page of the copy of the memo of 15 October 2002 comprising page 9 of the President’s report, the Tribunal is not satisfied that the evidence establishes that the applicant sent the memo by way of fax to Mr Platt or to his secretary on 15 October 2002 as she alleges. The Tribunal is not satisfied on the evidence that that memo or its contents were referred to specifically in the meeting on 18 November 2002. It is clear from the evidence that prior to 15 October 2002 and up to and during the meeting of 18 November 2002, the applicant was seeking to mediate her complaints and especially her return to work. It was consistent with such an attitude that she would not seek to prejudice the potential for a successful resolution of her position by introducing a litany of complaints and counter-complaints as those contained in her 14 page fax dated 15 October 2002.

81 The Tribunal finds that the evidence does not support the allegation by the applicant that she faxed to Mr Platt or his secretary on 15 October 2002, the document which comprises pages numbered 9 to 21 in the President’s report. The Tribunal also finds that the evidence does not support the allegation by Ms Chand that that document was produced at the meeting on 18 November 2002 or that that meeting discussed the contents of that memo. In view of these findings by the Tribunal the claim in the Points of Claim items 4(b) and 4(f) that a complaint was restated to Mr Platt in October 2002 or that the complaints were made to Kevin Platt in about October 2002 and then again in about November 2002, is not substantiated. It follows that there was no detriment suffered by the applicant arising out of such allegations.

82 The next allegation of victimisation within the complaint period is that contained in item 4(e) of the Points of Claim namely that the applicant suffered detriment consequent upon the referral by Mr Plichta in September 2002 to Mr Mark Abel and Mr Mark Karouche of complaints that had been made in March 2002 by the applicant to Mr Plichta.

83 The evidence relating to the complaints made by the applicant in March 2002 to Mr Plichta and the allegation that Mr Plichta subsequently referred the complaints to Mr Abel and Mr Karouche, is scant.

84 In her affidavit the applicant states ‘On or about 23 March 2002 I wrote to Mr Plichta responding to Ms Joshi allegations that I took asthma breaks.’ A copy of that letter was an exhibit to the affidavit. The letter is of two pages. The opening paragraph is as follows ‘I wish to reply to the issue raised by Mrs Nirmala Joshi regarding my disability – asthma, and which you brought to my attention on Tuesday 5 March 2002. You informed me that Mrs Joshi had alleged that I used asthma as a reason to not work during the weekends thereby disrupting the group and affecting its productivity.’ The fifth paragraph of the letter contains the following sentence ‘On numerous occasions she would just leave me behind, thus leaving me open to being assaulted whilst on duty. I regard her allegations as victimisation for airing my opinion regarding her incompetent leadership.’ The last paragraph of the letter, the 16th paragraph, stated that ‘I would appreciate an explanation for Mrs Joshi’s behaviour of singling me out for harassment, thus aggravating my asthmatic condition. I wish to formally charge her for discriminating against me due to disability. An early action in this matter would be appreciated.’

85 No further mention is made by the applicant in her evidence concerning the response she received to this letter or any further action taken in relation to it. The applicant’s evidence contains no mention to support the statement in the Further Particulars that the complaint was subsequently referred to Mark Abel and Mark Karouche by Jan Plichta in September 2002. The affidavit filed by Mr Plichta and the evidence by Mr Abel and Mr Karouche makes no reference to Mr Abel or Mr Karouche receiving from Mr Plichta in September 2002 details of the complaints in the applicant’s letter of 23 March 2002. In that letter as well as relating the claim of discrimination on the ground of disability referable to Mrs Joshi, the applicant makes a number of complaints concerning incidents of misconduct by Mrs Joshi.

86 In the view of the Tribunal, the evidence is not sufficient to substantiate the claim that in September 2002, Mr Abel and Mr Karouche received from Mr Plichta complaints that were made by the applicant to Mr Plichta on 23 March 2002.

87 As a consequence of this finding, the Tribunal is unable to determine that there was any detriment suffered by the applicant referable to her allegation that Mr Abel and Mr Karouche in September 2002 received details of complaints which she had made in March 2002.

88 The third item of victimisation which is referable to the complaint period is contained in item 4(g) of the Points of Claim, as further expounded in the Further Particulars. The Points of Claim state – ‘(g) Complaints to Jan Plichta, Barbara Phillips and Kevin Platt alleging that her complaints as to sex, race and disability discrimination were handled differently to complaints made by other workers.’ The Further Particulars describes this item as follows: ‘The complaints were made to Jan Plichta in about October 2002. The complaints were then made to Kevin Platt and Barbara Phillips on or about 15 October 2002 and then again in about November 2002.

89 In relation to the allegation of complaints made to Mr Platt and Ms Phillips on or about 15 October 2002 and in November 2002, the decision of the Tribunal expressed in relation to the first item of victimisation above, covers this aspect. At the meeting on 18 November 2002 attended by Mr Platt and Ms Phillips, the applicant did not refer to her complaining that her complaints as to sex, race and disability discrimination were handled differently to complaints made by other workers. The Tribunal can find no reference to such a complaint having been made at that meeting.

90 In relation to that part of this item of complaint alleging that the applicant made a complaint to Mr Plichta in early October 2002 in which the applicant alleged that her complaints were being handled differently to complaints made by other workers, the Tribunal is also at a loss to find any reference to such a complaint to Mr Plichta. In her submissions to the Tribunal, counsel for the applicant supplied references to paragraphs in the applicant’s affidavit which it was suggested are referable to this item of complaint. Those paragraphs do not contain reference to the applicant making the type of complaint allegedly referred to Mr Plichta in October 2002. In paragraph 32 of her affidavit, the applicant relates to an incident in late August 2002 when the Duty Manager from Marrickville complained about her. The applicant states ‘I was never provided with a copy or details of these complaints or the right to reply.’ Reference in paragraph 32 is not relevant to the allegation in this item of complaint.

91 The Tribunal finds that the evidence of the applicant does not support the item of complaint contained in paragraph 4(g) of the Points of Claim and accordingly this item of complaint is not substantiated.

Summary of findings of the Tribunal

92 The Tribunal has considered the three items of complaint against the respondent containing allegations of sexual harassment by employees of the respondent. The Tribunal finds that each of the allegations in those complaints have not been substantiated. The Tribunal directs that each item of complaint of sexual harassment against the respondent be dismissed.

93 The Tribunal has also considered the several complaints of victimisation which have been identified as complaints within the jurisdiction of the Tribunal. In relation to each of the items of victimisation, the Tribunal is unable to identify or substantiate that any of those complaints of victimisation are supported by the evidence. The Tribunal finds that the claims of victimisation are not substantiated.

94 In summary, the Tribunal finds that each of the items of complaint made by the applicant against the respondent has not been substantiated. The Tribunal directs that each of the item of complaint which come within the jurisdiction of the Tribunal, be dismissed.

Orders

1. The complaints of sexual harassment against three employees of the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.

2. That four of the complaints of victimisation against the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.

3. That the remaining complaints of victimisation against the respondent are not substantiated. Each complaint is dismissed.