Collins v Fastlink Communication Brokers Pty Ltd

[2005] NSWADT 182

CITATION:	Collins v Fastlink Communication Brokers Pty Ltd & anor [2005] NSWADT 182
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Michelle Collins FIRST RESPONDENT Fastlink Communication Brokers Pty Ltd SECOND RESPONDENT Edwin Almeida
FILE NUMBER:	021090
HEARING DATES:	24/02/2004, 7-9/06/2004, 24-25/08/2004, 8-10/11/2004, 13-14/12/2004, 14/03/2005
SUBMISSIONS CLOSED:	03/14/2005
DATE OF DECISION:	08/08/2005
BEFORE:	Conley J - Judicial Member; Clayton S - Non Judicial Member; Antonios Z - Non Judicial Member
APPLICATION:	Sexual Harassment - In workplace - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Legal Aid Act 1979
CASES CITED:	Hall v Sheiban (1985) ALR 503
REPRESENTATION:	APPLICANT S Beckett, barrister RESPONDENTS E Almeida, in person
ORDERS:	1. That the Second Respondent Edwin Almeida pay the Applicant the sum of $1 000; 2. No order as to costs.

1 Ms Collins (“the Applicant”) was contracted as a “sub-dealer” with Fastlink Communication Brokers Pty Ltd (“the First Respondent”) to sell mobile telephone plans on behalf of mobile phone service providers. The Tribunal has previously determined that Ms Collins was a workplace participant who worked from time to time at the Rockdale offices of Fastlink Administration Pty Ltd. She conducted the work both at home and in the offices of Fastlink Administration Pty Ltd at Rockdale.

2 Mr Edwin Almeida (“the Second Respondent”) was the sole Director of Fastlink Administration Pty Ltd. Mr Edwin Almeida, director and Mr Sturt Halcrow, director were equal shareholders in Fastlink Direct Marketing Pty Ltd. Shares in Fastlink Communication Brokers were held predominantly by Fastlink Direct Marketing. The company arrangements of the Fastlink group were described as a multi-level marketing structure.

3 Fastlink Administration Pty Ltd rented office space at Rockdale. Much of the business of the Fastlink group of companies was conducted from that office. Sub-dealers were able to work from home or from the office.

4 Ms Collins purchased shares in Fastlink Communication Brokers Pty Ltd. Fastlink Communication Brokers Pty Ltd is the Second Respondent to these proceedings. There is no dispute that it was represented to Ms Collins that for a purchase price of $50 000 she would be issued with 25% shareholding in the company. Her share certificate when issued was for 2.5%.

5 Ms Collins commenced training with the Fastlink group at the Rockdale offices in about November 2001. Mr Almeida worked closely with Ms Collins, training her in the business of selling mobile phone plans to clients on behalf of relevant service providers. Ms Collins alleges she was subject to sexual harassment and victimisation during the course of working as a commission agent from November 2001 until 14 April 2002.

6 Ms Collins made a complaint to the Police in relation to Mr Almeida’s conduct on 10 April 2002.

7 Mr Almeida was charged and subsequently convicted of criminal offences in the Local Court.

8 On appeal to the District Court the convictions were set aside.

SCOPE OF THE COMPLAINT

9 Ms Collins alleges that Mr Almeida asked her in about November or December 2001 to spend a weekend with him, left sexually explicit messages on her mobile telephone answering service and repeatedly put his hand on her neck. She alleges that in about January 2002 Mr Almeida left sexually explicit messages on her mobile telephone answering service and made sexually explicit comments to her at the Rockdale workplace.

10 She alleges that on 25 March 2002, Mr Almeida pushed her on to a lounge at the Rockdale workplace, lay on top of her back and rubbed his penis against her back. She also alleges that on that same day Mr Almeida grabbed her in a bear hug with his arms over her breasts.

11 She alleges that on 26 to 28 March 2002 Mr Almeida made sexually explicit comments to her on the telephone and on 29 March sat on her lap at the Rockdale workplace.

12 It is alleged that on 29 March Mr Almeida pushed Ms Collins on to a lounge and lay on her back trying to put his hands on her breasts and rubbed his erect penis against her back.

13 Ms Collins alleges that on 30 March 2002 Mr Almeida made sexually explicit and derogatory comments to her at the Rockdale workplace, gave her a bear hug from behind with his arms across her breasts and lifted her off the ground and made sexually explicit comments to her on her mobile telephone answering service.

14 She alleges that on 3 April 2002 Mr Almeida sexually harassed her by rubbing a pen up and down her inner thigh while she was driving, by grabbing her waist while she was driving and placing a mobile telephone between her legs while she was driving and offering to retrieve it from between her legs. It is alleged on 3 April 2002 Mr Almeida put his arm around Ms Collins’s shoulders and pulled her to him. She alleges that on 3 April 2002, she informed another director of the first respondent, Mr Sturt Halcrow and other employees of Fastlink Communication Brokers of the sexual harassment by Mr Almeida.

15 Ms Collins further alleges that on 12-15 April she was victimised by Fastlink Communication Brokers and Mr Almeida when her contract as a sub-dealer was terminated.

WHAT MS COLLINS MUST PROVE

Relevant provisions of the Anti-Discrimination Act 1977

16 Part 2A of the Anti-Discrimination Act 1977 (“the Act”) prohibits sexual harassment in certain areas. Section 22A of the Act defines sexual harassment as follows:

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.

17 Section 22B(6) of the Act makes it "... unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons”.

“workplace” means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.”

“workplace participant” means any of the following:

(a) an employer or an employee

(b) a commission agent or contract worker

(c) a partner in a partnership

(d) a person who is self employed,

(e) a volunteer or unpaid trainee.

18 Section 50 of the Act relevantly provides as follows:

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

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

Or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

19 Ms Collins commenced training at the Rockdale offices of Fastlink Administration Pty Ltd in November 2001. Work was performed at the office for the benefit of other Fastlink companies including Fastlink direct Marketing and Fastlink Communication Brokers Pty Ltd. It is to be noted at the outset that the evidence in relation to the company arrangements and structures was a little unclear. The evidence suggests a multi-level marketing structure with Fastlink Administration Pty Ltd as an umbrella company. For the purposes of this application it was not necessary to deal with the issue.

Sexually Explicit Comments and Telephone Calls and Touching

20 Ms Collins alleges that Mr Almeida asked to spend a weekend with her during the period November to December 2001, and also that he left sexually explicit messages on her mobile phone during the same period. It is claimed Mr Almeida placed his hand on her neck repeatedly during this period. Mr Almeida denies the allegations.

21 Ms Collins’ evidence is that she complained about Mr Almeida’s conduct to Mr Sturt Halcrow. Ms Collins told the Tribunal that in December 2001 she mentioned to Sturt Halcrow that Mr Almeida had become “sleazy” and that she had said to Sturt Halcrow a number of times that she did not like this.

22 Mr Halcrow was described by Ms Collins as someone she had known a number of years. It was Mr Halcrow who introduced Ms Collins to the Fastlink group of companies and who initially invited her to invest in Fastlink communication Brokers Pty Ltd.

23 Mr Halcrow in turn described their relationship as “good friends”. Mr Halcrow also told the Tribunal that he had “guaranteed” Ms Collins investment of $50 000 if anything went wrong. Ms Collins agreed that Mr Halcrow was someone that she trusted enough to give $50 000, in relation to an investment in Fastlink Communication Brokers.

24 Ms Collins also relies on Mr Charles King also to support her allegations. She told the Tribunal that she had spoken to Mr King about Mr Almeida’s actions on a number of occasions. She could not give specific details, but said she told Mr King about Mr Almeida’s conduct quite a few times early on in her time with the Fastlink group.

25 Mr King in his evidence to the Tribunal was questioned about the alleged complaints from Ms Collins about Mr Almeida. Mr King was asked if Ms Collins made any complaint to him about any “sexual innuendos” from Mr Almeida. He said that he did not recall Ms Collins making any such comment to him. Mr King described the relationship between Ms Collins and Mr Almeida as “businesslike” and “cordial”. He said that prior to the police becoming involved in this matter he did not have a clue of what was happening, he had not even picked up any vibes.

26 When Mr King was giving evidence he was asked whether he had spoken to Ms Collins the day before the hearing as Ms Collins had previously given evidence that she had spoken to Mr King the day before the hearing. The Tribunal observed that Ms Collins attempted to coach Mr King while he was giving evidence as a witness from her position in the hearing room. This occurred when Mr King gave evidence inconsistent to hers. The Tribunal directed Ms Collins to cease any such conduct immediately.

27 Mr Halcrow could not recall any sexually explicit comments being made by Mr Almeida to Ms Collins, nor any touching having occurred in the November to December period. He said that he thought it was some time after January that Ms Collins made her first complaint to him.

28 Ms Collins alleges that the conduct of leaving sexually explicit messages on her mobile telephone and making sexually explicit comments to her in the workplace continued in January of 2002. Mr Almeida denies the allegations.

29 Mr Halcrow gave a statement to the effect that on one occasion Michele Collins told him that Mr Almeida rang her and left a message on her mobile phone. Mr Halcrow said he listened to the phone and heard Mr Edwin Almeida speaking, saying words to the effect:

“I’ve been dreaming (or thinking) of you all night and I woke up with a hard on”.

30 Ms Collins said that she had told Caterina Barone, about message which was,

“I dreamt about you all night and was hard in the morning. Call me”.
On that occasion, Ms Collins gave Ms Caterina Barone her mobile phone to listen to. Ms Barone also worked for the Fastlink group at the Rockdale offices.

31 Ms Caterina Barone is described as someone Ms Collins had known for approximately twelve years. Ms Barone describes herself as a friend and their children went to the same school together. Ms Collins evidence is that she was at Ms Barone’s home and heard a sexually explicit message on her mobile telephone and gave the phone to Ms Barone to listen to the message.

32 This evidence is refuted by Ms Barone. Ms Barone’s evidence was that she did not hear any sexually explicit message from Mr Almeida to Ms Collins. Ms Barone gave evidence that Mr Almeida did not make sexually explicit comments in the workplace, nor did he swear in the workplace. Curiously her evidence was that it was Ms Collins and Mr Halcrow who had sexually explicit conversations in the workplace and would try to engage herself in such conversations.

33 Ms Collins states that Mr Almeida would also say similar comments to her whilst she was in the office. These comments would be in front of other employees in the office and Mr Almeida didn’t seem to be worried that other people in the office would hear what he was saying and those kinds of comments would make her feel embarrassed and dirty when he said them.

25 March 2002

34 Ms Collins gave evidence that on 25 March 2002 she was in the Rockdale office in the evening. At around 7 pm she went into an office to retrieve her vacuum cleaner that she had left at the office in order to take it home. As she walked into the office Mr Almeida followed her, closed the office door and turned off the light. He pushed her on to a lounge located in the office, and lay on top of her. He rubbed his penis up and down her back.

35 Ms Collins alleges that she screamed and shouted to Mr Sturt Halcrow who was in another office down the hallway. She pushed Mr Almeida off and stood up. She said that she then moved toward the window and went to pick up the vacuum cleaner. Mr Almeida came up behind her and gave her a bear hug. Mr Almeida then left the room. When she went to the front office she saw Mr Almeida speaking to Mr Halcrow. Mr Almeida left the office shortly afterwards.

36 The evidence of Mr Halcrow is that he was on the phone at the time and Mr Almeida came into the office and said to him,

“I just put the wind up Michele. She’s been making dirty phone calls to me, so I got her in the end office, shut the door, turned the light off and pushed her on to the lounge. Did you hear her screaming?”
Mr Almeida then left the Rockdale office.

37 Mr Halcrow claims that Ms Collins then came into the office and told him what Mr Almeida did. He described her as saying,

“Edwin followed me down the hallway and pushed me into the room, slammed the door, turned the light off and threw me on to the lounge. I was screaming get off me. When he got off me I walked towards the window and saw the vacuum cleaner. I reached over to get the vacuum cleaner. He reached over me and I yelled at him, knock it off, cut it out.”

38 Mr Halcrow’s evidence is that he told Ms Collins that he would have to say something to Mr Almeida but Ms Collins did not want him to. She said that she thought he got the message and that if he said anything it could make it hard for her, as she really loved the job and if her husband found out, he would make her leave. She said if that happened she would lose her $50,000 investment. Mr Halcrow’s evidence is that he went home and made a note in his diary about what he had been told by Ms Collins. A copy of that diary note for 25 March 2002 is in evidence before the Tribunal.

39 Mr Almeida denies the events took place. He claims that Ms Collins left the office that afternoon around 4 pm to pick up her children and did not return. He relies upon phone records to establish that he had a phone conversation on his mobile phone with Ms Collins just after 6 pm that evening. This was not disputed. Ms Collins claimed that she later returned to the office.

29 March 2002

40 Ms Collins claims that she attended a training day which was held at the Rockdale office on 29 March 2002. The training day was for training of new recruits for the Fastlink group. Mr Sturt Halcrow did not attend the training. Ms Collins gave evidence that while she was in an office speaking to Mr Sturt Halcrow on the telephone, Mr Almeida came in and sat on her lap. She told Mr Halcrow that Mr Almeida had just sat on her lap. The evidence of Mr Halcrow is that he was on the telephone with Ms Collins at the time and she said words to the effect of

“The big oof has just sat on my lap”.

41 Ms Collins alleges that later in the day when she was getting ready to leave, she asked two new recruits to take a rug down to her car. She then went into an office to collect her handbag. She said that she walked into the office and Mr Almeida followed. He then pushed her on to a lounge located in the office. He then rubbed his penis against her back. She pushed him off and told him that if he did this again, she would see him in court. Mr Almeida denies these events occurred.

42 Sturt Halcrow’s evidence is that Ms Collins rang him that evening on his mobile phone and said to him words to the effect

“The bastard just pushed me on the lounge again in Carmen’s office. He pushed me on the lounge and lay on top of me. I could feel his hard on. I was yelling at him to get off. I sent Charles and a new guy down to the car with the carpet. He was calling out my name. I yelled at him to get off me. He did and got up. I said keep your fucking hands off me or I’ll see you in Court.”
Sturt Halcrow states he did not know what to say. He felt obligated to Ms Collins as he had encouraged her to invest in the company. He made another diary note of what Ms Collins told him.

43 Ms Collins claims that she attended a working bee held at the offices in Rockdale on 30 March 2002. The working bee, held on an Easter Saturday, was not attended by Mr Sturt Halcrow. The working bee involved the cleaning up of the Fastlink offices. She gave evidence that Mr Almeida gave her a bear hug, lifting her off the ground.

44 Mr Almeida does not deny that these events occurred. He gives evidence of the events being preceded by a pillow fight. He states that he lifted the applicant off the ground in a bear hug to avoid the applicant’s advances.

45 Mr Gerard Maginnity who worked for the Fastlink group also gave evidence in relation to these events. Mr Maginnity had been in the same office as Mr Almeida and Ms Collins. He briefly left and went to another office down the hall, returned and saw Mr Almeida lift Ms Collins off the ground in a bear hug. He said Mr Almeida moved Ms Collins from side to side about three times. Neither of them appeared to say anything and Ms Collins looked a little puzzled. Mr Almeida then let go of Ms Collins and he appeared to toss her towards a lounge and she stumbled and fell towards the lounge. Ms Collins stood up and then they noticed Mr Maginnity and Mr Almeida left the room. Ms Collins did not discuss the matter with Mr Maginnity. He described her as not being upset in relation to this incident.

3 April 2002

46 Ms Collins says that on 3 April 2002 she had an appointment with a client in the city and that Mr Almeida went with her. It is alleged that during the trip into the city that Mr Almeida rubbed a pen on Ms Collins’ inner thigh. Mr Almeida rubbed the pen up to the bottom of the skirt about mid way on Ms Collins’ thigh. She told him to stop it. Mr Almeida moved the pen and starting rubbing it on the inside of her left leg. He rubbed the pen up and down her leg about 10 or 12 times and she pushed him away. Ms Collins claims that he did this throughout the entire journey.

47 Ms Collins claims that as they approached the tollway for the Eastern Distributor Mr Almeida dug his right hand into her waist and held her waist tight between his finger and thumb and pressed hard. She told him to stop. Ms Collins also states that at one stage she picked up her mobile phone which was in the centre consul and put it in between her legs and it fell down near her crotch. Mr Almeida then said “Let me get it”. Ms Collins didn’t say anything but grabbed the phone herself, and rested it on top of her skirt.

48 The meeting in Phillip Street started about 3.10 pm and finished about 4.15 pm. Ms Collins states that she gave Mr Almeida a lift back from Phillip Street to the Rockdale offices. As they were leaving the car park Mr Almeida grabbed her around the waist. He picked up the pen again and started to rub the pen on the outside of her left leg and did this all the way back to the Rockdale office. She states that during the trip she continued to tell him to stop, but he did not.

49 Ms Collins claims that by the time they returned to the Rockdale office she was close to tears. She walked in to the office and Mr Sturt Halcrow and his daughter, Ms Kylie Baxter were there. She claims that Mr Sturt Halcrow saw her and indicated that they go into a conference room and said words to the effect

“We’re going to have to blow this out of the water now”.

50 A meeting was called which was attended by Ms Carmen Vargas, Ms Sturt Halcrow, Mr Edwin Almeida and Mr Renee Peereboom. Ms Carmen Vargas asked her to explain what had been going on. Ms Collins stated that she did not want Mr Almeida to touch her ever again, she had had enough. She said that he kept throwing her on the lounge and fondling her and that he had stepped over the boundary. That he ran his pen up and down her leg while she was driving and hugged her on the way back to the office.

51 Ms Collins claims that Mr Almeida said words to the effect

“I’m sorry, I’m sorry, what do you want me to do. Do you want me to apologise. What can I do?”
Ms Collins states that Mr Halcrow said
“You even did this to my daughter”, referring to Kylie Baxter.
Mr Halcrow said
“The position you put me under as a father and as a director. You have no idea of the pressure.”

52 Mr Sturt Halcrow gave evidence that when Ms Collins returned from the meeting in the city Ms Collins looked very stressed. Her face appeared pale and withdrawn. When she came into the office Mr Halcrow said words to the effect “We better have a meeting.”

53 He says that Ms Collins and himself either went to the back of the office or went to a shop and Ms Collins told him that Mr Almeida was rubbing a pen on her leg and she kept pushing him away and that he put a mobile phone between her legs. Mr Halcrow reports that he went back to the office, spoke to Michael Jonathan and then spoke to Ms Carmen Vargas and arranged a meeting.

54 Mr Halcrow reports that in response to Ms Collins allegations Mr Almeida said words to the effect

“Alright, OK, I’ll stop it. It won’t happen again”. And “Alright, alright, I’m sorry – what do you want from me – an apology? Alright, I’m sorry. I apologise.”

55 Mr Halcrow said that he stated to Mr Almeida that he had tried this on his daughter.

56 Mr Halcrow told Mr Almeida that he had put the company in a very bad position and that they should think about their positions in the company. Mr Almeida then left for another appointment.

57 Mr Renee Peereboom gave evidence about the events of 3 April 2001. He says that he didn’t see Ms Collins return to the Rockdale office as he was in a meeting with Mr Sturt Halcrow at the time they returned. He stated that when the meeting with Mr Halcrow was finished he saw Mr Edwin Almeida and Ms Collins in the kitchen having a drink. They were on their own in the kitchen. They were talking about the meeting they had just been to. Mr Peereboom claims he was in the kitchen with Mr Almeida and Ms Collins for about 10 minutes. Ms Collins did not seem uncomfortable. In his oral evidence he described her as happy. He said the business meeting seemed to have been a success.

58 He said that Ms Collins left the kitchen and he remained in the kitchen talking to Mr Almeida. A short while later Ms Carmen Vargas called them into an office for a meeting. Mr Carmen Vargas introduced the meeting.

59 Ms Collins told the meeting that Mr Almeida had been harassing her for a while and she had asked him on several occasions to stop, but he didn’t. She also told the meeting that

“On one occasion, Edwin threw me on to the lounge and grabbed me from behind.”

60 Mr Almeida disputed this saying that he

“stood behind her and grabbed her by the arms. I never touched her breasts.”
Ms Collins said
“He did, he stood behind me and grabbed my breasts. He’s been sending me calls saying he fancies me and thinking of me give him a hard on.”

61 Mr Peereboom stated that Mr Almeida denied the allegations saying words to the effect

“I admit I’ve gone too far, but I still haven’t gone that far. I haven’t done what Michele is accusing but I was too chummy.”
Mr Peereboom states that the conversation went on for a while, then Mr Halcrow stood up and accused Mr Almeida of inappropriate behaviour with his daughter Kylie. Mr Almeida then said
“There has been a kiss, but it was a mutual kiss. It wasn’t forced upon her.”
Mr Peereboom claims that he really could not remember much more of the meeting as he was too stunned.

62 Mr Peereboom stated that Ms Collins had never complained to him prior to that meeting of 3 April 2002 about any sexual harassment or similar conduct prior to that date.

63 Ms Carmen Vargas sister of Mr Almeida, gave evidence that Ms Collins was always happy in the office environment and had said to her that she loved going out with Edwin on appointments because she knew it was a “done deal”. The evidence of Ms Carmen Vargas is that on Wednesday 3 April 2002 Mr Sturt Halcrow came into her office and spoke to her about Ms Michele Collins. As a consequence she decided to call a meeting. She called Michele Collins into her office and spoke to her first with Mr Halcrow present.

64 Ms Collins told her words to the effect

“Edwin has been coming on strong, he’s held me in bear hugs, he sat on my lap, he has put his hand down my top and touched my breasts. He has pushed me on the lounge and tried to get on top of me, but I always got away from him and told him to back off.”

65 Ms Vargas then asked Ms Collins if she was to bring Mr Almeida into the room, if she could say everything that she had just told her. Ms Collins agreed. She then decided to bring in someone else as a witness and they called in Mr Edwin Almeida and Mr Renee Peereboom.

66 Ms Collins raised issues of touching, phone calls and stated that Mr Almeida threw her on to the lounge and tried to get on top of her. Ms Collins then raised the issue of her $50,000 investment. Mr Halcrow then spoke. Mr Vargas claims that it wasn’t until Mr Sturt Halcrow spoke to her that day that she had any idea that there were any problems between Ms Collins and Mr Almeida.

67 Mr Almeida denied the allegations about his behaviour in the car on 3 April 2002. He stated Ms Collins offered him a lift back to the Rockdale office. He claimed that as it was peak hour and Ms Collins lived on the northern beaches he could catch a train. There was no reason for Ms Collins to go back to Rockdale.

68 Ms Collins reason for returning to the office was that she had left her handbag there.

Ms Kylie Baxter

69 Ms Kylie Baxter gave evidence that she is Mr Halcrow’s daughter. She gave evidence that Mr Almeida had been inappropriately touching her at the Rockdale offices. She claimed that Mr Almeida had on occasions kissed her and made sexually explicit comments. Ms Baxter gave evidence in the Local Court that on one occasion she had kissed Mr Almeida and that it was consensual. She said that she did so because she felt sorry for Mr Almeida and because he had agreed to stop sexually harassing her. Her evidence in the Local Court was that she engaged in or responded to Mr Almeida’s comments because she wanted to stop the discussion.

70 Ms Baxter conceded that she had discussed her relationship with Mr Almeida with Ms Carmen Vargas, Mr Almeida’s sister.

71 Ms Baxter told the Tribunal that she had seen letters from Mr Almeida’s solicitor in respect of a debt owed by her father to Mr Almeida and that she did not believe her father owed the money and that he was in the right.

72 Ms Vargas gave evidence of conversations with Ms Baxter. Ms Vargas said that both Mr Almeida and Ms Baxter were having relationship problems with their respective partners at the time of these events. Ms Baxter had told her that she had kissed Mr Almeida and that she had allowed it to occur and she subsequently felt guilty for allowing it to happen. Ms Vargas claimed she was then surprised when later Ms Baxter’s conversations were suddenly different with Ms Baxter complaining that Mr Almeida kept touching her. Ms Vargas said that Ms Baxter told her that she had found out Mr Almeida was “hitting on to” Ms Collins and “some other girl in the building” and that she felt “dirty”.

73 Mr Almeida’s evidence was that he did touch and kiss Ms Baxter and that it was consensual.

74 Mr Nelson Arias gave evidence that he had walked unannounced into one of the Fastlink offices at Rockdale on one occasion and saw Ms Baxter leaning over Mr Almeida with her arms around his neck.

Victimisation

75 Ms Collins claims that she was victimised as a consequence of raising allegations of sexual harassment against Mr Edwin Almeida. She claims that her employment contract was terminated as a direct consequence of this and that she was locked out of the Rockdale premises. Ms Collins relies upon an email from Anita Bondfield dated Sunday 14 April and sent at 2.47 pm. In summary, the email is as follows:

On Friday 12 April, 2002, the Board of Directors met and resolved to terminate Stuart Halcrow’s appointment as a Director effective immediately. Sturt Halcrow is now required to immediately suspend all actions and business activities associated with the management of Fastlink Direct Marketing and Fastlink Communication Brokers. At the same meeting it was resolved to accept Renee Peereboom’s and Gerrard Maginnity’s resignations as Directors of Fastlink Direct Marketing also to be effective immediately…

76 The email states that the remaining Directors Carmen Vargas and Edwin Almeida held another board meeting where it was resolved as follows:

it was resolved to sanction you for allegations of misconduct and breech (sic) of contract. It has been alleged that you have been approaching service providers with the intent to obtain representation agreements. This has not been authorised by the board of directors nor were they informed that you intended to pursue those activities. Furthermore, Sturt Halcrow denies giving you authority to engage in these activities and any action was of your own free will. It has also been alleged that you accepted Sturt Halcrow’s offer to appoint you as a director of Fastlink Direct Marketing and to issue you with shares in return for your silence on allegations of sexual harassment. This offer was unilaterally conducted and without the consent or knowledge of the Board of Directors and your acceptance can only be construed as an intent to blackmail the company. You have lied to the police about Caterina’s involvement in the sexual harassment allegations, placing another company representative in a vulnerable position with the law and with the company and company members.

Effectively immediately:

You are required to suspend any dealings with service providers and to send a list of all the companies you have approached to Fastlink Direct Marketing.

You are required to apologies (sic) in writing to Caterina for making a false statement to the police about her involvement in the allegations. You are banned from entering the Company’s Rockdale premises until all allegations over your misconduct and breach of contract are resolved and Caterina has received your letter of apology.

77 Ms Anita Bondfield, sister of Mr Almeida, gave evidence that she received a telephone call from Gerrard Maginnity about 5 April 2002 which was quite sketchy. He told her that something had “blown up” at the Fastlink office and some impropriety had been alluded to by him.

78 Ms Bondfield said that Mr Maginnity suggested that Mr Almeida had been stood down as a director and that Sturt Halcrow was taking over the company. He did not elaborate but intimated that Mr Almeida had done something unethical. Ms Bondfield therefore decided to contact Sturt Halcrow before she spoke to Mr Almeida.

79 Ms Bondfield stated that on the next day, 6 April 2002, she had a conversation with Mr Sturt Halcrow. Allegations were made about Mr Almeida and Ms Kylie Baxter. Ms Bondfield said that on the information she had the relationship between Ms Kylie Baxter and Mr Almeida had been “two way”.

80 Mr Halcrow mentioned details of a deal whereby Mr Almeida was to step down as director and Mr Halcrow was to purchase Mr Almeida’s shares in the company for $50,000. He also mentioned that he had spoken to Ms Collins and that she was willing to stay on and take shares in Fastlink and take on a directorship. He also mentioned that he had spoken to Ms Collins and that this was a way to protect the company from future legal action.

81 Mr Halcrow asked if Ms Bondfield would continue in the company if Mr Almeida left. She responded that she would not as Mr Almeida was the brains of the company and “owned the contracts” with the service providers.

82 Ms Bondfield’s evidence was that Mr Halcrow described Ms Collins as a “star operator” and was getting revenue in. He also said that Ms Collins was capable of getting service provider deals and was about to close negotiations with service providers. He indicated that they could run the company as effectively as Mr Almeida could.

83 Ms Bondfield said that having regard to Mr Halcrow’s dealings in the company at that time, she did not regard him as a “professional” in his dealings. She then decided to call Mr Almeida to get his side of the story. She said that she did not call Ms Collins, because at this point in time she thought of Ms Collins as a victim.

84 Ms Bondfield said that she called Mr Almeida, and got his side of the story and he denied the allegations of assault. Mr Almeida agreed to a director’s meeting in which she would facilitate discussions.

85 Mr Almeida claimed to her that the timing coincided with demands he was making on Mr Halcrow to fix his house or repay the debt owed for shares. She said that Mr Almeida claimed that he had also announced to Mr Halcrow and Ms Collins that he was not going to support Mr Halcrow’s plan to move into the home market scheme, because Mr Halcrow failed to demonstrate the level of competency required for the project. Mr Almeida claimed that Mr Halcrow and Ms Collins were plotting to remove him as a director.

86 Ms Bondfield said that she had another conversation with Mr Halcrow later in the afternoon. He agreed to the meeting taking place on the Monday with the directors to discuss the issues.

87 Ms Bondfield said that she held no formal position in the company at that point in time, however she undertook to chair the meeting and investigate what was going on because her professional reputation was at stake. She lived and worked in Canberra. She was concerned the company was about to dissolve and she had organised seminars with government departments, therefore her professional reputation was at stake in a small city. Ms Bondfield claimed that the meeting was held in order to try and save the company.

88 Ms Bondfield said that she was also concerned that nobody was doing anything about the allegation of sexual harassment. No one seemed concerned with the mental state of Ms Collins, the only focus was the ownership of the company. Mr Halcrow had offered Ms Collins a directorship in the company, and had offered Ms Collins and Ms Baxter shares in the company without consent from the other directors.

89 Ms Bondfield clarified what was meant when she referred to the “board” and the “board of directors”. She described the board as being made up of the directors and also Ms Carmen Vargas, Ms Gerrard Maginnity, Mr Renee Peereboom, those persons being individuals within the company who made up the executive positions and administrative positions. Mr Halcrow is described as being the administrative manager and Mr Renee Peereboom managed the operations side.

90 At the meeting Mr Halcrow said that he had an offer on the table to buy Mr Almeida’s shares for $50,000. Ms Bondfield told the meeting that the offer from Mr Almeida had been withdrawn. If the directors still wished to proceed any new offer would ask first for the outstanding payment for Mr Halcrow’s shares and then consider a figure for Mr Almeida’s shares.

91 Ms Bondfield said that the issue of payment for shares was also discussed at the meeting. Mr Halcrow agreed that he still had to complete the renovations on Mr Almeida’s house to complete the payment for his shares. He disputed the figure owing, suggesting it was more like $35,000.

92 The issue of Ms Collins approaching service providers on behalf of Fastlink without the board’s authorisation was discussed. It was alleged that Mr Halcrow had in fact authorised Ms Collins to undertake this. He denied the allegation suggesting that Ms Collins had been acting on her own volition. The board decided that Mr Jonathan and Ms Collins needed to appear before the board to hear what they had to say.

93 They also discussed whether Mr Halcrow had offered Ms Collins shares in Fastlink to prevent harassment allegations. Ms Bondfield stated that she asked Mr Halcrow about this in the meeting because of the conversation she had had with him on the preceding Saturday. The directors including Mr Halcrow denied consenting to this offer. It was agreed that such an offer would not be consented to because it could be construed as bribery.

94 Mr Peereboom was to seek legal advice about the company’s obligations to Ms Collins and Mr Almeida and how best to handle the matter. A board member should counsel Ms Collins to ensure she got proper support and understood her legal rights.

95 Ms Bondfield states that Ms Collins then went to the police and took out an AVO against Mr Edwin Almeida which restricted Mr Almeida from entering the Rockdale office. The police went to the Rockdale office looking for Mr Almeida and mentioned they wanted to speak to Ms Carmen Vargas and Ms Caterina Barone in respect of allegations made by both Ms Collins and Ms Barone. Mr Almeida was scheduled to meet with Ms Barone the next day and he requested Ms Bondfield contact her to advise her that the meeting would be cancelled.

96 Ms Bondfield’s evidence was that she called Ms Barone to relay the message. She said that Ms Barone was shocked to hear that she was implicated in the allegations. Ms Bondfield said that Ms Barone told her that Ms Collins had lied to the police since she, Ms Barone, had no reason to complain and had not made complaints.

97 Ms Bondfield states that after the issues raised at the meeting, she suggested to Mr Almeida that they move to dismiss Mr Halcrow from directorship of the company. A board meeting was called and the board accepted the resignations of Mr Peereboom and Mr Maginnity as directors.

98 A follow up meeting was held where Ms Bondfield was present by telephone with Mr Almeida and Ms Carmen Vargas. The directors agreed to stand down Mr Halcrow as a director and as Ms Collins had refused an invitation from the board to discuss allegations of impropriety, Ms Bondfield suggested the board write to her. Ms Bondfield states that she then prepared an email and sent one to each of Ms Collins and Mr Halcrow. She then discovered the process to dismiss Mr Halcrow as a director was invalid, and subsequently received a fax the next day from Mr Halcrow’s solicitor stating that she had acted illegally and that the actions dismissing Mr Halcrow were invalid.

99 Mr Almeida relied upon an email from Ms Collins to Mr Halcrow on 16 April 2002. The email states:

We must check legally what we can say in regards to Edwin if the service providers challenge us on the response. This is only used if we are told that Edwin has contacted them about the issue…

100 The email goes on to say that:

Then we just tell them seven charges of sexual assault on clients and staff have been processed and are being dealt with by the Courts. And then we say we will proceed in business without Edwin. To make you (the sp) a lot of money and we intend to make our company a lot of money…

101 Ms Collins then writes:

I am just thinking that I will approach the providers naively under a different name to become a sales person for them and just see what response they will come up with. And maybe this will allow a bit of leeway with the contract percentage for the company.

102 Ms Collins gave evidence that at the time she sent the email she was aware that Mr Almeida had not been charged with any other criminal charges except for the charges relating to herself. She had taken legal advice at that time.

103 Ms Collins gave evidence that when she sent the email she had been locked out of the office. She had not approached service providers before then.

104 Ms Collins alleged that Mr Michael Jonathan had advised her that she would be “blocked in everything she did”. She further alleged that Mr Almeida had advised service providers not to touch her. She claimed that her name was tarnished in the industry so she had to go under another name as a sales person as she had pressure from home to recoup her $50,000 investment.

105 Ms Collins gave evidence that she rang one service provider “Macquarie Corporate”, and was told by that service provider that “that they were not to touch her”. Ms Collins said that she intended to approach service providers under a different name so they would not know who she was.

106 On specific questioning, she said she intended to enter into a sub-dealer contract under a different name, not Michele Collins, in order to get her foot in the door. She told the Tribunal that she did not proceed to do this because she got sick and was required to go into hospital for 10 days after a transient vascular accident which required rehabilitation.

107 Ms Collins was questioned specifically about Macquarie Corporate and she conceded that she had worked with persons from Macquarie Corporate on an account with the Fastlink group. She conceded that Macquarie Corporate had contracted with the Fastlink group. Ms Collins was also questioned about training held by the Fastlink group in relation to Fastlink sub-dealers talking to service providers directly. Ms Collins conceded that she was aware that sub-dealers were not allowed to do this.

108 Ms Collins told the Tribunal that she had to approach service providers herself as her employment contract had been terminated. When asked whether or not she had been approaching service providers in breach of her sub-dealer agreement before 14 April 2002, Ms Collins said that she did not do this until after her contract had been terminated.

109 Mr Damien Waters, Director of Digi-Net Pty Ltd gave evidence to the Tribunal. Digi-Net Pty is a mobile phone service provider which had contracted with the Fastlink group. He stated that he recalled being approached by Ms Collins and Mr Halcrow at the end of January 2002 or early February 2002. He said the request related to speaking with him in confidence about not putting business through the Fastlink group. He said Ms Collins had deals pending and it was imperative to get the connections processed on a separate dealer code.

110 He said the most important things to him were the clients. He said that he gave Ms Collins a separate dealer code, however, nothing was processed, the code was never used. He described a “dealer code” as being a reference number which all business is put through. He said that the reason given to him for the need for a dealer code was that they did not wish to process business on an existing dealer code, they wished to start up a new business. He did not know what the business arrangements were. He gave evidence that his company had a contract with the Fastlink group.

111 Ms Collins gave evidence that the conversation with Mr Waters was after she had been “sacked” on 14 April 2002 and she was not allowed back into the Rockdale premises. Ms Collins evidence was a little confusing in relation to why Mr Water was calling her. She said that on 24 April 2002 Mr Waters called her and she returned his call. She kept a memo of the conversation. She said that she contacted him because she had clients signed who had been cleared for credit and were ready to be transferred to the new service provider. This could not be done because she was not allowed back into the Rockdale offices. She therefore rang Damien Waters. This was the first time that she had discussed the issue of the dealer code. She said that she had never spoken to Mr Waters before 24 April 2002.

112 She was questioned a number of times about speaking to Mr Waters on previous occasions. Mr Water’s evidence was that Ms Collins and Mr Halcrow had contacted him in February or March of 2002. She gave evidence in most emphatic terms that she had never spoken to Mr Waters previously. Ms Collins was questioned by the Tribunal and asked whether or not she had any previous contact with Mr Waters including any email contact. Ms Collins was again quite emphatic she had “never” had any contact with Mr Walters prior to that day in April when she was returning his call.

113 Ms Collins’ told the Tribunal that that she was not allowed to have his phone number because he was a “channel partner”. As a sub-dealer for the Fastlink group she was not allowed to speak to channel partners without approval.

114 Ms Collins telephone records indicated that she had numerous calls to Mr Waters both before 24 April 2002 and after that date. When questioned about this she told the Tribunal that in February and March of 2002 Ms Carmen Vargas was away from the office so Ms Collins assisted in the office. She said that that the reason that she had called Mr Waters was to order SIM cards. She clarified her earlier evidence to say that the only conversations she had were in relation to those issues.

115 Mr Almeida gave evidence that sub-dealers were required to sign a deed of agreement with the Fastlink group of companies. The deed of agreement signed by sub-dealers who worked for the Fastlink group precluded them from contacting the service providers directly. If they did so, they were to inform the directors of Fastlink. Such service providers included Digi-Net Pty Ltd and Macquarie Corporate.

116 Mr Almeida gave evidence that at the end of March/beginning April he became aware of allegations that Ms Collins was approaching service providers without his knowledge. He thought that Michael Jonathan had raised the issue.

117 Mr Almeida also gave evidence about the allocation and issue of Ms Collins share certificate for Fastlink Communication Brokers Pty Ltd. He said that when Fastlink Communication Brokers was established, it was a company wholly owned by Fastlink Direct Marketing Pty Ltd and in which Mr Almeida and Mr Halcrow were 50% shareholders. The share arrangements were handled by Mr Sturt Halcrow’s accountant. It was proposed that Ms Collins would receive a 25% share of Fastlink Communication Brokers on condition of payment of $50,000.

118 Mr Almeida’s evidence was that a share certificate was prepared by Mr Halcrow’s solicitor or his accountant and Mr Almeida signed it. The share certificate recorded 50 shares. Mr Almeida said that Mr Halcrow led him to believe he was competent and he did not question him about the share allocation. Mr Halcrow told him that he had discussed the issue with Ms Collins and that Ms Collins was happy with the share arrangement. He asked Mr Halcrow to rectify the share certificate.

119 Mr Halcrow in turn gave evidence that the share arrangement was determined by Mr Almeida and that he just went along with it and the certificate issued by his accountant.

120 Mr Halcrow gave evidence that the Fastlink group of companies were a multi level marketing structure.

Credit

Michelle Collins

121 An issue arose in relation to the evidence sought to be produced by way of summons by Ms Collins. An email from Ms Collins to Mr Halcrow had been filed in related proceedings in the Industrial Relations Commission. Mr Almeida then sought to rely on that document. The evidence of Ms Collins as to why the email was not produced was that the hard drive of her computer failed prior to April or May 2002. Ms Collins had given evidence that on 13 October 2002 when the Tribunal proceedings were commenced, she printed off all the emails she had and all that material was provided to her solicitor at that point in time. She instructed her solicitor that other documents could not be produced as those documents were contained in a hard drive which had failed and she was unable to retrieve most of the material from the hard drive.

122 Ms Collins conceded to the Tribunal that she was planning to hold herself out to service providers under another name. She conceded that she was also planning to enter into a contract as a sub-dealer under a false name. The reason given by Ms Collins for such conduct was that she was desperate. On Ms Collins own evidence what prevented her doing this was the fact that she was admitted to hospital for a transient vascular accident which required rehabilitation.

123 Ms Collins gave evidence in the District Court and the Tribunal that she was aware that Mr Almeida had not been charged in respect of sexual assault of other persons. Despite this she proposed to Mr Halcrow that they approach service providers and tell them that Mr Almeida had been charged with seven charges of sexual assault on clients and staff and the charges were before the courts. No reasonable explanation was given by Ms Collins for this.

124 It was clearly put to Ms Collins that she had contacted Mr Damien Waters from Digi-Net in breach of her sub-dealer agreement as early as February and March of 2002. Ms Collins was given the opportunity to explain any earlier contact with Mr Waters. She emphatically denied any earlier contact with him prior to April 2002, the date she claims her contract was terminated. When questioned about her phone records Ms Collins then clearly remembered calling Mr Waters, claiming however the calls were because she was helping out Ms Carmen Vargas in the office.

125 Ms Collins attempted to coach Mr King when he was giving evidence in the hearing which was contradictory to hers.

126 The evidence before the Tribunal shows Ms Collins to be a witness of little credit. On her own evidence she was prepared to make false statements to service providers in respect of her name. She was also prepared to make false representations to the service providers about sexual assault charges against Mr Almeida for financial gain.

127 Ms Collins was also not truthful in respect of her dealings with Mr Damien Waters.

128 Ms Collins received little corroborative evidence in respect of her allegations except from Mr Halcrow and his daughter Ms Baxter. This was despite evidence from Ms Collins that her co-workers had seen and heard Mr Almeida’s conduct towards her.

Sturt Halcrow

129 The common evidence is that Ms Collins agreed to purchase a 25% share of Fastlink Communication Brokers Pty Ltd in exchange for $50 000. She paid the money in January 2002. Mr Halcrow describes himself as a good friend of Ms Collins. He had invited her to invest in the company and had “guaranteed” the money if anything went wrong. He said Mr Almeida proposed the shareholding of 2.5% and drafted the share certificate. Mr Halcrow then through his accountant, had the Share Certificate issued in relation to Ms Collins investment in Fastlink Communication Brokers. The further evidence is that Mr Halcrow attended the Kogarah Police station on the night Ms Collins saw the Police about the allegations of sexual assault. He insisted that she sign the Share Certificate. The Share Certificate was for 2.5% of Fastlink Communication Brokers.

130 Mr Halcrow was a 50% shareholder in Fastlink Direct Marketing Pty Ltd. It was not in dispute that he derived his share-holding on condition that he pay Mr Almeida a sum of money. The actual sum is disputed. Mr Almeida claims it was $50 000 Mr Halcrow claims it was $20 000. What is agreed is that the sum was to be paid in part by cash with the balance being in kind with Mr Halcrow undertaking building work on Mr Almeida’s home. While there was a dispute as to how much was owing, Mr Halcrow’s evidence is that he has never paid any of the sum owed to Mr Almeida for shares in Fastlink Direct Marketing Pty Ltd.

131 Mr Halcrow was a friend of Ms Collins prior to her commencing work for the Fastlink group. He encouraged her to invest the $50 000 in Fastlink Communication Brokers Pty Ltd and “guaranteed” the sum. What is meant by this “guarantee” is unclear. The evidence discloses that Mr Halcrow was very involved in the issue of the share certificate. On Mr Almeida’s evidence he arranged the issue of the share certificate. Even on Mr Halcrow’s own evidence he was involved in the issue of the share certificate. Despite his friendship to Ms Collins and representations to her, he did not advise her of the proposal to reduce her shareholding to 1/10 of the value represented she would receive. The evidence, which is not disputed, is that he took the share certificate to the Police station the night Ms Collins complained to the Police about Mr Almeida. He then pressured her to sign the certificate.

132 The Tribunal finds Mr Halcrow to be a witness of little credit. He was in dispute with Mr Almeida about funds owed to Mr Almeida. He did not deal in a transparent way with the issue of shares in respect of someone he describes as a good friend, whom he initially invited to invest in Fastlink Communication Brokers. He has also guaranteed the sum invested by Ms Collins.

133 In these circumstances the fact that Mr Halcrow’s evidence significantly supported Ms Collin’s evidence does not assist her greatly because of the adverse findings against him.

Edwin Almeida

134 Mr Almeida was also involved in the issue of the share certificate for Ms Collins. It is unclear to what extent Mr Almeida was involved in the issue of the share certificate. At best, on his own evidence Mr Almeida was aware the certificate was not 25% as represented, when he went ahead and signed the certificate which was for 1/10 of the value it should have been. His evidence was that Mr Halcrow by his solicitor and or accountant was responsible for the issue of the certificate and Mr Halcrow agreed to rectify the certificate. Even if the Tribunal accepted that Mr Almeida were not responsible for the issue of the certificate (and we make no findings in relation to this issue), Mr Almeida was aware, at the time he signed the certificate, that the certificate represented a fraction of the shareholding held out to Ms Collins. His evidence in relation to why he signed is a most unsatisfactory explanation.

135 Therefore because of Mr Almeida’s involvement in the issue of the share certificate and the unsatisfactory nature of his evidence in relation to that, he must have his credit reduced.

136 In respect of Mr Almeida’s evidence in relation to the subject of this complaint his evidence does attract more credit that that of Ms Collins. This is because his evidence is significantly corroborated by other witnesses. Particularly Mr Almeida was described as touching Ms Collins constantly in front of staff and making sexually explicit comments in front of other staff. This was denied by Mr Almeida. His version of events gets support from witnesses, including Ms Barone, Mr Peereboom, Mr King, Mr Arias and Mr Mort who describe his conduct with Ms Collins as professional and friendly. Ms Vargas, Mr Almeida’s sister, also provides support in this respect.

137 The Tribunal has commented upon Ms Baxter’s evidence separately. Ms Baxter could however give no direct evidence about the substantive allegations and her evidence about her relationship with Mr Almeida is contradicted by Mr Arias and Ms Vargas

Ms Caterina Barone

138 Ms Caterina Barone presented as a witness of credit. Her evidence was given in a straight forward manner and Ms Collins did not allege any bias or interest on her part.

Ms Carmen Vargas

139 Ms Carmen Vargas presented as a genuine witness. When Ms Collins complained to her she did not brush off the complaint. She took immediate steps to deal with the issue by arranging a meeting to discuss the complaint. Her evidence however has to be treated with care as she is Mr Almeida’s sister.

Ms Anita Bondfield

140 Ms Anita Bondfield presented as a credible witness. Her evidence was given in a frank and unemotional manner. She conceded that she had not dealt with the issues correctly and that she had no authority to act on behalf of the Fastlink group. Her evidence has to be treated with care however as she is Mr Almeida’s sister and was very involved with the attempted resolution of the issues.

Mr Nelson Arias

141 Mr Nelson Arias presented as a credible witness when giving his oral evidence. Mr Arias also has to be treated with care as he is still involved in business dealings with the Fastlink group and Mr Almeida.

Ms Kylie Baxter

142 The evidence given by Ms Baxter in respect to her relations with Mr Almeida is contradicted by other witnesses. Her own evidence in the Local Court is a little inconsistent.

143 Her evidence must be treated with caution as Ms Baxter is Mr Halcrow’s daughter. She told the Tribunal that Mr Halcrow does not owe Mr Almeida any money and that her father is in the right in relation to the financial dispute with Mr Almeida.

Mr Charles King

144 Mr King was a witness of limited credit. He could not recall speaking with Ms Collins the day before he gave evidence. His evidence does have some significance however because Ms Collins relied upon him to support her complaint about Mr Almeida’s behaviour. He at first denied he had been told about Mr Almeida’s behaviour then could not recall. He then went on to give evidence that when the allegations became public he was very surprised as he had no idea what was happening.

FINDINGS AND DECISION

145 The Tribunal was required to consider the issue of the credit of the witnesses because for the most part the only witnesses to the allegations were Ms Collins and Mr Almeida. Some corroborative evidence is given by Mr Halcrow and to a much lesser extent, Ms Baxter. It is Ms Collins as applicant who must prove the claim on the balance of probabilities. The Tribunal has considered the evidence given to the Tribunal and the reliability of the witnesses’ evidence in its entirety.

Sexually explicit comments and telephone messages and touching

146 In relation to the claims of touching and explicit sexual comments by telephone in the period November and December 2001, we have regard to the evidence of Ms Collins. She claimed that Mr Almeida was constantly touching her at the Rockdale office in front of other staff. She further claimed that she told Mr Halcrow and Mr King about the touching and comments. Neither Mr King nor Mr Halcrow support the allegations of Ms Collins as she said they would. Mr Almeida denies that these incidents occurred. We therefore find in the circumstances that Ms Collins has not established the allegations as claimed. Particularly we do not find that Mr Almeida either asked her to spend a weekend with him, left sexually explicit messages on her mobile phone or said them to her directly, or placed his hand on her neck.

147 Ms Collins claims this conduct continued from January 2002 until she ceased work. There is also insufficient evidence to support a finding that Mr Almeida left sexually explicit messages on Ms Collins’ mobile phone in the period from January 2002 until the time she left, made sexually explicit comments to her in the workplace, or touched her in the workplace. The evidence before the Tribunal is that most of the work participants of the Rockdale workplace including Mr King, Ms Barone, Mr Peereboom and Mr Arias described the relationship in terms such as “businesslike”, “amicable”, or “friendly”.

148 Mr Halcrow did give evidence that supported Ms Collins. He claimed that he heard Mr Almeida making sexually explicit comments on her mobile phone. Ms Barone was also alleged to have heard a similarly sexually explicit message on Ms Collins mobile phone, however she denied this. She claimed the message she heard was work related and did not have sexual connotations. It is to be noted that Ms Collins has known Ms Barone for 12 years.

149 These allegations made by Ms Collins are not only not supported, but not supported by persons who were nominated by her to have either seen or heard her complaints. The only exception is Mr Halcrow who claims to have heard a sexually explicit message on the telephone.

150 This is Ms Collin’s claim and it is therefore her who must satisfy us on balance of the truth of her claim. Having regard to the totality of the evidence before the Tribunal and the reliability of Ms Collin’s and Mr Halcrow’s evidence we do not find that Mr Almeida left sexually explicit messages on Ms Collins Mobile phone. There is no evidence, except that of Ms Collins to support the other allegations including touching and sexually explicit comments in the workplace in the period from January 2002 until April 2002.

25 March 2002 and 29 March 2002

151 On 25 March 2002 Mr Almeida is alleged to have thrown Ms Collins onto a lounge then laid on top of her. The only two witnesses to this event are Ms Collins and Mr Almeida. Mr Halcrow gives corroborative evidence that both Ms Collins and Mr Almeida told him about the incident immediately afterwards. Mr Almeida denies that the event occurred and denies telling Mr Halcrow they did.

152 Ms Collins alleges that on 29 March 2002 Mr Almeida sat on her lap while she was on the telephone to Mr Halcrow. Mr Halcrow gave evidence that he was told by Ms Collins that Mr Almeida was sitting on her lap.

153 Ms Collins alleges that, in almost identical circumstances, Mr Almeida followed her into an empty office and again pushed her onto a lounge and lay on top of her. She telephoned Mr Halcrow that evening.

154 Mr Almeida again denies the events occurred and claims that Ms Collins was not in the office that evening.

155 For the reasons given above in relation to credit the Tribunal is not satisfied on the balance of probabilities that the facts as alleged occurred.

30 March 2002

156 It is not in dispute that Mr Almeida lifted Ms Collins off the ground in a bear hug on 30 March 2002. The evidence of Ms Collins was that Mr Almeida had his arms across her breasts when he lifted her. Mr Almeida claimed to have his arms under her arms.

157 The evidence of Mr Maginnity was that he observed Mr Almeida lift Ms Collins off the ground in a bear hug. He said Mr Almeida moved Ms Collins from side to side about three times. Neither of them appeared to say anything and Ms Collins looked a little puzzled. Mr Almeida then let go of Ms Collins and he appeared to toss her towards a lounge and she stumbled and fell towards the lounge. Ms Collins stood up and then they noticed Mr Maginnity and Mr Almeida left the room. He described her as not being upset.

158 We find on the evidence that Mr Almeida did lift Ms Collins in a bear hug at the Rockdale office on 30 March 2002. There is no evidence before the Tribunal to support a finding that Ms Collins welcomed this conduct. The independent evidence of Mr Maginnity that Ms Collins looked puzzled supports a finding that the conduct was not welcome. We find that in order to lift Ms Collins off the ground sufficient to swing her from side to side a number of times Mr Almeida would have had to have held Ms Collins in very proximate and intimate hold or “hug” which we find to be sexual in nature. We therefore find that the conduct was both unwelcome and constitutes conduct of a sexual nature. We further find that the conduct is such that a reasonable person having regard to all the circumstances, including the work context, would be offended, humiliated or intimidated by such conduct. The conduct therefore falls within the scope of section 22B of the Anti-Discrimination Act 1977 and constitutes sexual harassment.

3 April 2002

159 The evidence of what occurred on this day prior to the meeting is again very inconsistent. Ms Collins evidence is that Mr Almeida inappropriately touched her throughout the journey from Rockdale to the city. This is denied by Mr Almeida who claims that if he had acted as described Ms Collins would not have given him a lift back to Rockdale, especially in peak hour traffic when she lived on the northern beaches.

160 Mr Halcrow and Ms Baxter gave evidence that Ms Collins returned to the Rockdale offices looking terrible. Mr Peereboom claims he was in a meeting with Mr Halcrow when Ms Collins returned. Mr Peereboom said that he went to the kitchen when the meeting was finished and saw Ms Collins and Mr Almeida drinking a cup of something. He describes Ms Collins as being happy. He does however describe her as very stressed and tearful in the meeting a short time later.

161 Ms Collins does have some limited support from Ms Baxter and Mr Halcrow in relation to the events occurring on the journey to and from the city. They do not give direct evidence as they were not present in the car. For the reasons given above their evidence is to be treated with care. Mr Peereboom, evidence about Ms Collins’ demeanour when she returned from the meeting is completely contrary to that of Ms Baxter and Mr Halcrow. He describes Ms Collins as happy and drinking a hot drink with Mr Almeida in the kitchen. The only direct evidence in relation to the events in the car is that of Ms Collins and Mr Almeida. With the exception of what occurred in the meeting the evidence is too inconsistent to enable the Tribunal to find on the balance of probabilities that the events occurred as described having regard to the issues of credit identified.

Victimisation

162 Ms Collins claims that her contract as a sub-dealer was terminated by Fastlink Communication Brokers Pty Ltd and relies upon the email of Ms Bondfield of 14 April 2002 to establish this. She claims that she was locked out of the Rockdale office. She claims that she was accused of lying to the Police in relation to Ms Barone and accused of blackmailing the First Respondent.

163 The email sent from Ms Bondfield to Ms Collins on 14 April 2002 states that Ms Collins is banned from the Rockdale office until issues surrounding misconduct are resolved and she has sent a letter of apology to Ms Caterina Barone. The evidence is that Ms Barone had been a friend of Ms Collins for approximately 12 years. She also worked for the Fastlink group. Ms Collins claims that she heard sexually explicit comments from Mr Almeida on her (Ms Collins) mobile phone and told this to the Police. Ms Barone denied this to Police and this evidence was used in the Local Court. There is no evidence to support Ms Collins claim in relation to Ms Barone.

164 There is evidence before the Tribunal that there were concerns raised by Mr Jonathon that Ms Collins had been approaching service providers directly in breach of her sub-dealer agreement. Ms Collins own evidence emphatically denied this. The issue was discussed at a staff meeting which she did not attend. The email does not state that Ms Collins contract as a sub-dealer is terminated. It directs that she suspend dealings with service providers. A point Ms Collins conceded in her own evidence that she was not allowed to do. Ms Collins in banned from entering the Rockdale offices until issues surrounding allegations of her misconduct and breach of contract are resolved.

165 During the hearing Ms Collins was given ample opportunity to explain any contact with Mr Waters Director of Digi-Net Pty Ltd a service provider which contracted with the Fastlink group. Ms Collins simply denied any contact whatsoever in most categorical terms including the statement that she had “never” had contact with Mr Waters prior to contact in April. When questioned about her phone records she then attempted to explain that contact.

166 The evidence before the Tribunal establishes that Fastlink group had sufficient grounds to have concern about Ms Collins conduct. They invited her to a meeting to explain that conduct and she declined that opportunity. The evidence of Ms Bondfield is that it was determined that they should then write to her for her response.

167 On the evidence before the Tribunal we do not find that the email of 14 April 2002 amounts to a constructive dismissal of Ms Collins and therefore victimisation.

Damages

168 The Tribunal finds the claim of sexual harassment proven in relation to the bear hug on 30 March 2002. The Applicant claims damages for non-economic loss in relation to this claim.

169 In considering what is the appropriate level of damages the Tribunal has regard to Wilcox J in Hall v Sheiban (1985) ALR 503 at 543, where it was noted that the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult.

"...damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage."

170 The evidence of Ms Collins related to the claim in its totality, in which we mostly failed to find in favour of Ms Collins. Having regard to the incident which occurred we find that it was quite an invasive action. This incident, while invasive, is a minor incident in relation to Ms Collins claim as a whole. There is no specific evidence from Ms Collins in relation to the injury to her feelings, distress and humiliation caused by this particular incident. We therefore award Ms Collins the sum of $1 000.

Costs

171 Ms Collins submitted that if this claim were not to succeed that she should still be entitled to an order for costs. The basis of the submission is that the hearing could have largely been conducted with reliance upon the Local Court transcript. She alleges that Mr Almeida has unnecessarily protracted the hearing of this matter by seeking Legal Aid, calling witnesses who had already given evidence in the Local Court and also calling witnesses at the last moment.

172 The complaint contains very serious allegations against Mr Almeida including a number of allegations of indecent assault. Mr Almeida was represented by Counsel in the Local Court criminal proceedings. He was initially represented by a solicitor in the Tribunal, however he told the Tribunal that he could no longer afford representation. He also funded an appeal to the District Court against the convictions in the Local Court. Mr Almeida had sought a grant of Legal Aid which was declined the evening before the day the hearing was to commence on 24 February 2004. He therefore sought an adjournment of the hearing on the first day the matter was set down (24/2/04) as he wanted to appeal the decision declining aid. In accordance with section 57 of the Legal Aid Act 1979 the Tribunal adjourned the hearing pending the determination of the appeal.

173 Mr Almeida did concede that he would rely upon the Local Court Transcript in respect of cross examination of witnesses in the Local Court. To a significant degree he only sought to cross examine on issues beyond the scope of the Local Court proceedings. It is noted that Mr Almeida did at times seek to cross examine on issues already dealt with in the Local Court, however he was self represented and he was not particularly skilful in the art of cross examination.

174 Late evidence came to light after a copy of an email from Ms Collins to Mr Halcrow was filed in the Industrial Relations by Mr Halcrow in related proceedings. Ms Collins’ evidence was that she no longer had the email as her hard drive had failed. Mr Almeida sought to rely on that document which necessitated further evidence from Ms Collins.

175 Mr Almeida had indicated at the outset an intention to call Mr Waters if he were available to participate in the hearing, noting that he was in Queensland.

176 Section 114 (1) of the Anti-Discrimination Act 1977 provides that except as provided by section 111 (2) (which is not relevant to this matter) each party to an inquiry shall pay his or her won costs. Section 114 (2) goes on to provide that where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so it may make an order as to costs.

177 This matter involved a lengthy hearing. The matter had previously been heard in the Local Court and the transcript of the Local Court proceedings was in evidence before the Tribunal. The District Court transcript became available towards the end of this hearing. The scope of the complaint however went beyond that of the Local and District Court proceedings.

178 We do not find that Mr Almeida unduly protracted the proceedings. The complaint went beyond the scope of the Local Court proceedings and also included a complaint of victimisation. The allegations against Mr Almeida personally were very serious. The Tribunal must therefore balance the right of the respondent to properly defend the proceedings having regard to the relative severity of the allegations. Ms Collin’s claim was for the most part not successful. We do not find that the circumstances of this matter are such to justify the Tribunal making an order for cost in favour of the applicant.

179 We therefore make no order as to costs.