Evans v Denico (Discrimination)
[2020] ACAT 44
•19 June 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
EVANS v DENCIO (Discrimination) [2020] ACAT 44
DT 35/2019
Catchwords: DISCRIMINATION – claim of discrimination in the provision of goods, services and facilities – claim of discrimination on the basis of a protected attribute the applicant was thought to have, namely his sexual orientation – claim of sexual harassment – meaning of ‘conduct of a sexual nature’ and ‘sexual harassment’ – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 32
Discrimination Act 1991 ss 8, 20, 58,
Human Rights Commission Act 2005 ss 53A,
Sexual Discrimination Act 1984
Cases cited:Complainant 201808 v Transport Canberra and City Services[2018] ACAT 132
Forkin v Young [2020] NSWCATAD 29
Hall v A & A Sheiban Pty Ltd [1989] 20 FCR 217
Mewett v University of Canberra [2018] ACAT 61
Poniatowska v Hickinbotham [2009] FCA 680The State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board [1996] VSC 78
Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203
Tribunal: Senior Member K Katavic
Date of Orders: 19 June 2020
Date of Reasons for Decision: 19 June 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL DT 35/2019
BETWEEN:
SCOTT EVANS
Applicant
AND:
ARIEL DENCIO
Respondent
TRIBUNAL: Senior Member Kristy Katavic
DATE:19 June 2020
ORDER
The Tribunal orders that:
1.The application is dismissed
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
1.The parties in this application were patrons of the same gym. The applicant, Mr Evans was a client and the respondent, Mr Dencio an employee. For a period of time, the respondent was the applicant’s personal trainer. The respondent had a number of clients one of which happened to be a friend of the applicant at that time.
2.Things deteriorated between the parties when the applicant became aware of the respondent allegedly commenting to the applicant’s friend on his sexual orientation. This escalated between the parties sometime later during a personal training session.
3.Eventually the applicant ceased the services of the respondent and made a complaint to the ACT Human Rights Commission (HRC). On 21 October 2019, the complaint was referred to the Tribunal in accordance with section 53A of the Human Rights Commission Act 2005 (HRC Act).
4.The applicant essentially makes two allegations under the Discrimination Act 1991 (Discrimination Act) contending that he was discriminated against by the respondent in the course of the provision of personal training services due to a perceived protected attribute being his sexuality, and that the respondent engaged in unwelcomed conduct of a sexual nature constituting sexual harassment.
5.The Tribunal regards referrals from the HRC as an application made under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).[1]
Summary dismissal application
[1] Mewett v University of Canberra [2018] ACAT 61 at [11]
6.At a directions hearing before a presidential member on 16 March 2020, the respondent made an oral application seeking to have the matter dismissed (the Strike Out Application). That request was deferred to the hearing of the matter listed before me on 19 March 2020. The determination of this issue had potential to dispose of the matter in its entirety.
7.Section 32 of the ACAT Act confers power on the Tribunal to, amongst other things, dismiss an application in whole or part if satisfied, inter alia, that it is either frivolous or vexatious, lacking in substance, or otherwise an abuse of process.
8.The relevant test to be applied is whether, on the balance of probabilities, the Tribunal can be satisfied that the respondent has engaged in unlawful acts[2] as contended by the applicant.[3] The respondent bears the onus of showing that the applicant’s case should not be allowed to proceed.[4]
[2] Unlawful act for the purposes of the HRC Act has the same definition in the Discrimination Act which includes part 3 (unlawful discrimination) and part 5 (sexual harassment) of that Act
[3] TGD v Australian National University [2019] ACAT 81 at [65]
[4] TGD at [66] citing The State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board [1996] VSC 78 at [39(5)]
9.The approach to be taken by the Tribunal in the circumstances may be summarised as follows:[5]
(a)The applicant’s case must be obviously hopeless and untenable or that it could on no reasonable view justify relief.
(b)The Tribunal’s power is to be exercised with caution and consistently with the objectives of the statute.
(c)A clear distinction must be drawn between the applicant and the evidence given in support of the claim and should not be dismissed or struck out as lacking in substance merely because it does not itself contain evidence supporting the claim.
(d)If an application is obviously unsustainable in law or fact it can be dismissed or struck out, including but not limited to the application disclosing no reasonable cause of action or there is a sufficient defence;
(e)The Tribunal should not be overly technical, artificial or mechanical in coming to a view about the application.
(f)If the material discloses a dispute as to a fact in issue which cannot be readily resolved from the material alone, it would be difficult for the Tribunal to be satisfied the applicant is lacking substance.
(g)The whole or part of an application should be dismissed or struck out if the respondent establishes that any element essential for the applicant to prove in order substantiate the complaint is frivolous, vexatious, lacking in substance or misconceived.
[5] TGD at [66] citing The State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board [1996] VSC 78 at [39]
10.Having heard the parties’ submissions and without commenting on the merits of the applicant’s arguments, I was not satisfied the applicant’s case was so hopeless or untenable such that it warranted being struck out in whole or part. The parties’ submissions sufficiently disclosed a factual dispute which did not favour summary dismissal. In those circumstances it was unsafe for the Tribunal to not allow the applicant to at least argue his case.
11.I decided not to strike out the application in whole or part and gave brief oral reasons. The hearing proceeded.
Issues
12.The following issues arise:
(a)Has the applicant been the subject of discrimination by the respondent during the course of personal training services based on a protected attribute that he was thought to have, namely his sexuality?
(b)Has the applicant been the subject of sexual harassment based on unwelcomed conduct of a sexual nature by the respondent which made the applicant reasonably feel offended, humiliated or intimidated?
Evidence
13.The following matters are not in dispute:
(a)The applicant does not identify as homosexual.
(b)In or around February 2019, the applicant commenced personal training sessions with the respondent.
(c)As at February 2019, the applicant was also friends with Ms Aleksandra Trajkovska.
(d)Prior to 2 March 2019, the applicant asked Ms Trajkovska to enquire with the respondent as to why he did not follow the applicant on Instagram or more actively interact with him outside the personal training sessions.
(e)Around 2 March 2019, Ms Trajkovska had a conversation with the respondent as requested by the applicant during which the respondent explained his concerns.[6]
(f)On 2 March 2019, using Facebook Messenger, Ms Trajkovska conveyed the substance of her conversation with the respondent to the applicant.[7]
(g)Sometime after the Facebook Messenger exchange between Ms Trajkovska and the applicant, Ms Trajkovksa ended her friendship with him.
(h)On 2 March 2019, the parties exchanged text messages in relation to the conversation the respondent had with Ms Trajkovska in which the applicant stated, amongst other things:
I am deeply sorry that either my actions or things I have said have made you believe I am gay…[8]
To which the respondent replied, amongst other things:
mate yes I did think that you are attracted to men and as you have admitted here you have said and done things that would make me think that. I never had an issue training you thinking that you may be and don’t really care if you are or not. I’ll take your word that you are not but it really is okay either way.
(i)As a result of the messages exchanged on 2 March 2019, the parties believed that was the end of the matter and continued with the personal training relationship.
(j)The respondent did not refuse to train the applicant because he thought he was gay[9] and the training sessions were never conducted differently.
[6] Transcript of proceedings 19 March 2020 at page 103
[7] Exhibit A2
[8] Exhibit A3
[9] Transcript of proceedings 19 March 2020 at page 80 and 103
14.Ms Trajkovska provided a written statement to the Tribunal[10] and also gave oral evidence. Her evidence is discussed below.
[10] Exhibit R6
15.A central area of dispute relates to a personal training session on 17 June 2019 (the June PT Session). There are conflicting accounts of a conversation between the parties during that session.
16.The applicant gave evidence that as at 17 June 2019, he was still concerned with some of the issues from the respondent’s conversation with Ms Trajkovska.
17.The applicant and respondent both gave evidence of what each of them say happened or did not happen during the June PT Session. There are aspects of that training session on which they agree.
18.The applicant says during the June PT Session, he raised his concerns about what was said to Ms Trajkovska with the respondent. The respondent agrees. They also agree the conversation was initiated by the applicant. They agree the exchange between the two was not loud or confrontational. The applicant described it as heated.
19.The applicant’s evidence was that he said words to the effect “don’t you think it was inappropriate to discuss with Aleks if I was gay” to which the respondent replied “no, I don’t give a fuck.”
20.The respondent says he told the applicant he didn’t think it was inappropriate because the applicant had asked Aleks to speak to him. He denies saying “I don’t give a fuck.” The respondent’s evidence was that he tried to shut down the discussion by saying to the applicant that he did not feel comfortable discussing it any further and he was happy to continue training. He also said he told the applicant words to the effect, “if you want to bring up personal issues and mental health issues then I would ask you to discontinue booking sessions with me.”[11]
[11] Transcript of proceedings 19 March 2020 at page 104-105
21.The applicant claims the respondent later said words to the effect “I still think you’re gay because you message gay men on Facebook.” The respondent denies this.
22.The applicant then claims the respondent said, in a forceful tone, “you’re gay, you’re gay, you’re gay.” The respondent denies this.
23.The applicant says the respondent said words to the effect “I don’t give a fuck if you want another coach I only care about your diet and training otherwise I don’t give a fuck.” The respondent agrees that he said words to the effect “happy if you want to find another coach, but I am only concerned with training and your diet and not personal issues.” He otherwise denies the applicant’s account.
24.The applicant and the respondent agree the June PT Session was otherwise conducted as it usually was, and there was no difference in the service provided except of course for the alleged conversation referred to above and the applicant’s claim regarding the respondent’s demeanour and the language he allegedly used.
25.There are no independent witnesses to what transpired between the applicant and respondent during the June PT Session. Mr Thomas Lawrence, another personal trainer at the gym at the time does not recall observing anything between the parties.
26.The applicant had scheduled another session, which he said he did not intend to keep. On 20 June 2019, the applicant informed the respondent he intended to continue training with another coach. This marked the end of the personal training sessions.
27.On or about 20 June 2019, the applicant made a complaint to Mr Andrew Lemmon, a co-director of the gym, about the June PT Session. Mr Lemmon made a written statement[12] and gave oral evidence at the hearing. He could not recall the precise words but said that the applicant alleged the respondent made homophobic comments about the applicant. He said he met with the applicant to discuss the issue. He also spoke to his co-director and spoke to the respondent about the complaint. He attempted to look for any witnesses via CCTV footage but was unsuccessful.
[12] Exhibit R7
28.On 22 June 2019, Mr Lemmon sent an email to the applicant[13] which contained the following line:
I’d spoken with Ariel about the verbal disagreements he’d had with you and acknowledged that what he said was out of line and that it wouldn’t happen again.
[13] Exhibit A5
29.Mr Lemmon was cross-examined about this email and his discussion with the respondent. In his oral evidence, he said the respondent at no stage admitted the allegations made by the applicant. He explained that the email to the applicant was inconsistent with what the respondent had told him, and he did that because he felt if he gave the applicant any other answer the applicant would have been dissatisfied with the outcome. He was attempting to de-escalate the situation as he was concerned the applicant might react badly. He conceded that he could not be 100% certain that the events occurred as described by either party. He said based on his experience with the respondent and the professionalism displayed by the respondent that he did not believe the applicant’s version of events.
30.Ms Emily Gall is the applicant’s fiancé. She provided a written statement and gave oral evidence. Her witness statement states that Scott was quite distressed and told me that Mr Dencio confronted him during a personal training session and said “you’re gay” at least three times. Scott also said that Mr Dencio became quite aggressive.[14] This evidence is inconsistent with the applicant’s evidence to the extent that it was not the respondent that initiated the discussion or that the respondent was aggressive.
[14] Exhibit A9
31.Mr Paul Hunter, the applicant’s friend, also provided a written statement[15] and gave oral evidence. He stated the applicant had reported to him “a number of encounters with Ariel Dencio” and that ‘Mr Dencio accused him of being gay’ a view which had been shared with another client. In his oral evidence he stated one incident in particular had been reported as follows:
Scott had basically told me that Mr Dencio had accused him of being gay and that the client - sorry, that Mr Dencio also shared that information with another client.[16]
[15] Exhibit A10
[16] Transcript of proceedings 19 March 2020 at page 96
32.He recalled this occurred in March 2019.[17]
[17] Transcript of proceedings 19 March 2020 at page 96
33.In a report dated 28 August 2019, Ms Anna Stevens, the applicant’s treating psychologist, provided a transcript of her session notes with the applicant.[18] During the session on 4 July 2019, the applicant reported the June PT Session to her. In it she records that the applicant reported, amongst other things, the respondent was “in my face, pointing at me [mimics aggressive gestures and manner] saying you’re gay, you’re gay, you’re gay.” This account sits in contrast to the applicant’s own evidence before the Tribunal to the extent that he did not describe the respondent behaving in that manner.
Unlawful act
[18] Exhibit A7
34.The applicant contends that the respondent had discriminated against him during the course of providing personal training services on the basis of a protected attribute that he was thought to have, being his sexuality.
35.The applicant claims that he was discriminated by the respondent on two grounds:[19]
(a)by having conversations with a third party about the applicant’s sexuality (the conversation with Ms Trajkovska); and
(b)by making unsolicited comments about the applicant’s sexuality directly to him during the course of a personal training session, including in an aggressive and hostile manner, even after the applicant told him it was inappropriate (the June PT Session).
[19] Applicant’s submissions dated 31 January 2020 at 24 and 25
36.These claims are not co-dependent.
37.The applicant’s claim was brought pursuant to section 20(c) of the Discrimination Act which states that it is unlawful for a person who provides services to discriminate against another person in the way in which the provider provides those services. Having regard to the definition of discrimination in section 8 of the Discrimination Act, the applicant claimed that it was unlawful for a service provider to treat another person unfavourably because of a protected attribute in the manner in which the services provided.
38.‘Services’ is defined to include “services relating to entertainment, recreation and entertainment.”[20] I am satisfied that the provision of personal training services falls within that definition as it is a recreational activity.
The conversation with Ms Tajkovska
[20] Discrimination Act, Dictionary
39.The claim regarding the respondent’s conversation with Ms Trajkovksa is difficult to reconcile with section 20(c) of the Discrimination Act.
40.The applicant asked Ms Trajkovska to speak to the respondent. The purpose of the approach was to ascertain why the respondent was not more socially involved with the applicant outside their professional relationship. As best it can be determined, the applicant needed some additional positive reinforcement and attention due to historical mental health issues, which he considered he was not receiving from the respondent.
41.The respondent gave evidence that he insisted on maintaining a strictly professional relationship with the applicant and resisted and/or limited any contact outside the gym. He did so not only because of the nature of the relationship, but that he felt the applicant often raised issues regarding his mental health and the respondent felt unqualified to deal with it.
42.The evidence from both Ms Trajkovska and the respondent regarding their conversation establishes the following:
(a)She approached the respondent at the applicant’s request.
(b)At the applicant’s request, she asked the respondent about his involvement in the applicant’s life and why he was not following the applicant on Instagram or social media or praising him for his dead-lift weight lift, his prowess in bodybuilding transformation, et cetera.[21]
(c)There had been earlier inappropriate behaviour on the applicant’s part involving Ms Trajkovksa and the respondent which raised a question about his sexual orientation such as, the applicant claiming he spoke to people that are gay online, he was always talking about men and bodybuilding, and gay people contacting him.
(d)Ms Trajkovska considered the respondent’s comment alluded to the applicant being gay. The respondent says he said words to the effect, “I think he is attracted to men” which was based on various interactions and inappropriate material the applicant had shared with him.
(e)The respondent agreed Ms Trajkovska would convey the conversation to the applicant, which she subsequently did via Facebook Messenger.
[21] Transcript of proceedings 19 March 2020 at page 123
43.Following the conversation, the parties exchanged text messages and considered that was the end of the matter.[22]
[22] See above at 13(h) and 13(i)
44.The applicant claims he was shocked and hurt by the respondent’s comments.[23] He framed his concern and disappointment around the respondent initiating the conversation,[24] which he later conceded it was not.
[23] Exhibit A1 at 7 and 8
[24] Exhibit A1 at 6
45.He also considered that he had “never made any representations to Mr Dencio from which he could infer I was homosexual.”[25] However, in the text message he sent to the respondent on 2 March 2019, the applicant admitted:
I can think of a couple of comments I have said to you that now I think has prob made you feel this way and I only said them because I thought you knew I’m not gay.[26]
[25] Exhibit A1 at 7
[26] Exhibit R8
46.The applicant was also cross-examined by the respondent in relation to various images he had sent to the respondent via text message, which included photos of topless men and a video of a man pulling a tractor by his genitals, as well as comments he made to the respondent about other men, including online messaging with gay men.[27] The applicant agreed he sent these messages and made these comments to the respondent.[28] The respondent said he formed his belief regarding the applicant’s attraction to men on this kind of behaviour.
[27] Transcript of proceedings 19 March 2020 at page 111
[28] Transcript of proceedings 19 March 2020 at page 61
47.On one view, the conversation between the respondent and Ms Trajkovksa was unnecessary. It was none of Ms Trajkovska’s business and why did the respondent’s involvement with the applicant beyond the gym matter? Conversely, she approached the respondent at the applicant’s request, which was borne out of a need on the applicant’s part to understand why the respondent was not more socially involved in his life. The respondent’s provision of personal training is not dependent on him following the applicant on social media or social contact outside the gym.
48.A complete reading of the Facebook Messenger exchange between the applicant and Ms Trajkovksa on 2 March 2019, discloses that the applicant was more invested in the relationship he had with the respondent and dependent on him for his mental wellbeing.[29] This was not reciprocated with the respondent recommending to the applicant several times he seek professional help from someone appropriately qualified. The applicant agreed this occurred. I am satisfied that the respondent sought to maintain a professional distance and was only concerned with training the applicant at the gym. This is reinforced by the content of the respondent’s text messages to the applicant on 2 March 2019.
[29] Exhibit A2
49.Against that background it is difficult to regard the conversation as discriminatory. Perhaps it was inappropriate, however, the applicant expected a conversation between Ms Trajkovska and the respondent to occur. The applicant took issue with the respondent’s remark that he thought the applicant was attracted to men. Despite the applicant regarding the conversation as inappropriate[30], the respondent cannot be criticised for conveying his views given the circumstances in which he was approached. He was placed in a difficult position, particularly where his only concern was training the applicant. Such a discussion need not have occurred, but nonetheless when pressed for an explanation, the respondent expressed an opinion about the applicant. Impropriety does not amount to discrimination.
[30] Exhibit A1 at 7
50.Further, the subsequent text message exchange between the parties suggests the matter was resolved. This is consistent with their evidence. Nothing further happened between them in relation to this issue until the June PT Session. The training and the sessions continued as normal.
51.In order to establish discrimination under section 20(c) the conversation must be more than merely inappropriate and must have some bearing on the manner in which the service to the applicant was delivered. It did not.
52.There are several inconsistencies in the applicant’s evidence. I am satisfied that the conversation took place at the applicant’s request. The conversation did not occur in the context of the respondent providing a service, but rather in a personal capacity because of the applicant’s desire to understand why the respondent was not more socially involved with him outside of the PT sessions. This was not related to the provision of the service by the respondent. The applicant also conceded he had sent material to the respondent and made comments which might have caused the respondent to form the belief he did. His belief that the applicant might have been attracted to men, might have been incorrect, but it was not without a reasonable basis.
53.The applicant was clearly bothered by the respondent’s remark as evidenced by what transpired later in the June PT Session, but nothing about the conversation between Ms Trajkovksa and the respondent including his remark that he thought the applicant was attracted to men satisfies section 20(c). The evidence does not establish the respondent treated the applicant unfavourably based on a perceived attribute in the course of providing a service.
The June PT Session
54.The applicant’s claim under section 20(c) in relation to the June PT Session depends largely on reconciling conflicting version of events. This is not an uncommon dilemma for the Tribunal and not an easy issue to resolve.
55.It is agreed that the applicant initiated the discussion during the June PT Session and that a conversation ensued. The applicant claims the respondent said words to the effect, “I still think you’re gay because you message gay men on Facebook.” The respondent denies this. The applicant also claims the respondent said “you’re gay, you’re gay, you’re gay”, which the respondent denies. On the other hand, the respondent accepts he told the applicant he did not regard his conversation with Ms Trajkovska as inappropriate. He says he told the applicant he did not want to discuss it or any other personal issues further and preferred to continue training. He accepts he invited the applicant to get another coach.
56.These versions of events are largely diametrically opposed. Having regard to the applicant’s dissatisfaction with the respondent’s remark to Ms Trajkovska and his torment over a lack of social media interaction, I am inclined to prefer the respondent’s account of the June PT Session. His deflection regarding personal and mental health issues and his focus on simply being a trainer is reinforced by the text message he sent to the applicant on 2 March 2019.[31] This aligns with his version of events regarding the June PT Session.
[31] Exhibit A3
57.The applicant submitted that his account of the June PT Session is to be preferred largely because it is consistent with what he told his fiancé, Ms Gall, his treating psychologist, Ms Anna Stevens, and Mr Hunter, his friend. There were inconsistencies in what those people all recall the applicant telling them about the June PT Session.
58.The applicant relied upon an email from Mr Lemmon dated 22 June 2019 in support of his account.[32] In that email Mr Lemmon, referring to a discussion with the respondent, stated “he acknowledged that what he said was out of line and that it wouldn’t happen again.” The applicant took this to be an admission by the respondent. Mr Lemmon explained the respondent said no such thing and he was merely making the statement to the applicant because he felt the applicant would not be satisfied with any other response. The respondent denied he made such a statement to Mr Lemmon. This was further denied in a subsequent text message to the applicant.[33]
[32] Exhibit A5
[33] Exhibit A3
59.It also appears that after the June PT Session the applicant went on a campaign to tell as many people as he could about his account of the session, including Facebook. This is what prompted the respondent to send a text message to the applicant on 28 June 2019 denying the applicant’s claim.[34] In this message the respondent wrote the following:
Mate what is your actual problem this argument never happened I never said any of the words you claim, we had no heated discussion ever you wouldn’t even talk to me face to face about anything anyway…I said one time to a client that we both agreed your behaviour was strange and definitely don’t think saying thinking someone is conflicted and possibly has feelings for men is an insult. I definitely never meant it as one.
[34] Exhibit A4; Transcript of proceedings 19 March 2020 at pages 106-107
60.The respondent adamantly denies ever using the term ‘gay’ to describe the applicant, either to him or Ms Trajkovska.[35] He admits he thought the applicant was possibly attracted to men and that he used those words. This is consistent with his text messages to the applicant. He regarded this as different to stating someone was gay. I therefore do not accept the respondent said the words ‘you’re gay, you’re gay, you’re gay’ to the applicant during the June PT Session. He did not use words to that effect in any of his text messages with the applicant. He was consistent in how he expressed himself to the applicant in both messages on 2 March 2019 and 28 June 2019 and before the Tribunal. Both agree that the PT sessions which followed the exchange on 2 March 2019 were normal and consistent with previous sessions. By all accounts, there were no issues in the continuation of that service.
[35] Transcript of proceedings 19 March 2020 at page 110
61.I am also not satisfied the respondent used the kind of intemperate language described by the applicant during the June PT Session. Again, the text messages do not contain language of that kind.
62.The applicant based this part of his discrimination claim under section 20(c) on the respondent making the statement ‘you’re gay, you’re gay, you’re gay’ in a hostile and aggressive manner in the June PT Session. I am not satisfied the respondent treated the applicant unfavourably because of a protected attribute and therefore I am not satisfied the respondent discriminated the applicant in the way in which the service was provided. In light of the above findings in relation to the June PT Session, discrimination under section 20(c) has not been established. There is nothing else about the June PT Session which equates to discrimination under section 20(c).
63.It is worth noting that both events the applicant relies upon have a common feature. The applicant initiated both. This required some kind of reaction or conduct from the respondent in relation to a topic or topics the respondent was not comfortable discussing. The applicant asked Ms Trajkovska to have a discussion with the respondent regarding his lack of social interaction with him. Unhappy with the result, the applicant confronted the respondent (some considerable time later) about his comments to Ms Trajkovska. Having initiated both interactions, the applicant’s complaint appears to be generated by his dissatisfaction with the respondent’s lack of socialisation with him and his opinion that he was possibly attracted to men. On both occasions the respondent was placed in a difficult position.
Sexual harassment
64.The applicant claims he was sexually harassed by the respondent.
65.The applicant contends that the respondent engaged in conduct that constitutes unwelcomed conduct of a sexual nature in circumstances in which he reasonably felt offended, humiliated or intimidated. Pursuant to section 58(1) of the Discrimination Act, such conduct is unlawful.
66.The applicant’s claim of sexual harassment against the respondent is based on the following conduct:
(a)The respondent stating “I thought you were attracted to men” in a text message to the applicant.[36]
(b)The respondent saying to the applicant in the course of the June PT Session the words “you’re gay, you’re gay, you’re gay.”
[36] Exhibit A3
67.Having found above that the respondent did not make such a statement in the June PT Session, the second of these claims is not established.
68.The respondent admitted, as is stated in the text message on 2 March 2019, that he stated to the applicant “I thought you were attracted to men.” Does this amount to unwelcomed conduct of a sexual nature, and if so, did it occur in circumstances where the applicant was reasonably offended, humiliated or intimidated?
69.I do not regard the statement made by the applicant to be a ‘sexual advance’, nor does it appear to have been contended as such.
70.Section 58(2) of the Discrimination Act defines ‘conduct of a sexual nature’ inclusively as follows:
conduct of a sexual nature, includes the making of a statement of a sexual nature to, or in the presence of, a person, whether the statement is made orally or in writing.
71.Further, in Poniatowska v Hickinbotham,[37] Mansfield J observed:
…I think it involves some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so, or is a person of a character empathetic to such behaviour. It is not necessary or appropriate to set the outer bounds of conduct of a sexual nature.
[37] [2009] FCA 680 at [294] (in relation to the Sexual Discrimination Act 1984 (Cth))
72.As observed in Complainant 201808 v Transport Canberra and City Services:[38]
No court or tribunal has attempted a more definitive definition of ‘sexual harassment’ or ‘sexual conduct.
[38] [2018] ACAT 132 at [114]
73.Whether conduct may be characterised as sexual harassment cannot depend on the subjective response of the person the subject of such conduct except to determine it to be unwelcome.[39] Further, the subjective intention of the alleged harasser is not determinative of whether conduct amounts to conduct of a sexual nature. The test is objective.[40] The Tribunal must determine objectively whether conduct may be characterised to be of a sexual nature by construing the facts of a particular case.[41]
[39] Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203 at [123] citing Hall v A & A Sheiban Pty Ltd [1989] FCA 72 at [46] per French J
[40] Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203; Forkin v Young [2020] NSWCATAD 29
[41] Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203; Forkin v Young [2020] NSWCATAD 29
74.The Tribunal must therefore determine whether the expression ‘I thought you were attracted to men’ is objectively conduct of a sexual nature. The words themselves do not contain overt sexual connotation nor are they laden with sexual innuendo. At best they may be construed as characterising a particular sexual persuasion. The mere insinuation of a particular sexual orientation does not of itself rise to a level capable of being conduct of a sexual nature. Further, sexual orientation is not an offensive subject matter. If it were, any innocent enquiry that might be made of someone regarding their sexual orientation, for whatever reason, might be capable of constituting sexual harassment. I am not satisfied that, objectively, the statement constitutes conduct of a sexual nature.
75.However, where such comments are made on a regular and repetitive basis or form part of a broader pattern of inappropriate sexual conduct or where they are said using a particularly suggestive tone of voice, such comments may amount to conduct of a sexual nature.[42] I am not satisfied that is the case here. The respondent made the statement to the applicant in a text message for explanatory purposes in response to a set of circumstances largely created by the applicant.
[42] Forkin v Young [2020] NSWCATAD 29 at [59]
76.The definition of sexual harassment also requires objective determination of whether it was reasonable for the applicant to feel offended, humiliated or intimidated having regard to all of the circumstances. Like the Tribunal in Complainant 201808 v Transport Canberra and City Services[43] observed, I find it difficult to disentangle the question of the reasonableness of the applicant’s feelings from my finding that the respondent’s comment was not sexual in nature. As I have found the statement does not constitute conduct of a sexual nature it is not necessary to consider the issue of whether the applicant was reasonably offended or humiliated further. Nonetheless, I accept the applicant was offended and humiliated by the statement. However, the statement is benign and when the circumstances in which it was made are considered, the applicant’s response cannot be regarded as reasonable.
[43] [2018] ACAT 132 at 124
77.The allegation of sexual harassment in respect of the statement ‘I thought you were attracted to men’ made by the respondent via text message to the applicant is not established.
Conclusion
78.The Tribunal is not satisfied the respondent has engaged in an unlawful act of discrimination or engaged in sexual harassment.
79.The application is dismissed.
………………………………..
Senior Member K Katavic
HEARING DETAILS
FILE NUMBER:
DT35/2019
PARTIES, APPLICANT:
Scott Evans
PARTIES, RESPONDENT:
Ariel Dencio
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
Sneddon Hall & Gallop
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member K Katavic
DATES OF HEARING:
19 & 20 March 2020
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