Ford v Inghams Enterprises Pty Ltd (No 3)
[2020] FCA 1784
•11 December 2020
FEDERAL COURT OF AUSTRALIA
Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784
File number: QUD 349 of 2017 Judge: COLLIER J Date of judgment: 11 December 2020 Catchwords: HUMAN RIGHTS – sexual harassment – s 28A Sex Discrimination Act 1984 (Cth) – complaint before Australian Human Rights Commission terminated under s 46PH(1)(i) Australian Human Rights Commission Act 1986 (Cth) – scope of jurisdiction – s 46PO(3) Australian Human Rights Commission Act 1986 (Cth) – whether application before Court the same, or arose out of the same acts, omissions or practices, as complaint before Australian Human Rights Commission – whether alleged conducted substantiated by applicant – whether substantiated conduct constituted sexual harassment – principles of s 28A Sex Discrimination Act 1984 (Cth) – whether patting or slapping of applicant’s buttocks was “conduct of sexual nature” – whether fifth respondent’s language was “conduct of a sexual nature” – whether substantiated conduct was unwelcome – whether a reasonable person in the circumstances would have anticipated the possibility that the applicant would be offended, humiliated or intimidated by the conduct.
EVIDENCE – expert medical evidence – use of psychologist’s non-expert opinion – deemed admissions – r 16.07 Federal Court Rules 2011 (Cth) – whether the first and third to fifth respondents made deemed admissions – effect of deemed admissions – s 83 Evidence Act 1995 (Cth) – objections to evidence – whether evidence of witnesses relevant – s 55 Evidence Act 1995 (Cth) – whether evidence of witnesses unfairly prejudicial or misleading – hearsay evidence – s 59 Evidence Act 1995 (Cth) – admissibility of first-hand hearsay evidence – s 62 Evidence Act 1995 (Cth) – admissibility of lay opinions – ss 76 and 78 Evidence Act 1995 (Cth) – admissibility of tendency and coincidence evidence – Pt 3.6 Evidence Act 1995 (Cth) – whether sufficient notice to respondents of tendency and coincidence evidence – s 100 Evidence Act 1995 (Cth) – whether notice requirement be dispensed with – probative value of tendency or coincidence evidence – use of tendency and coincidence evidence for other purposes – credibility of evidence of witnesses – whether post-traumatic stress disorder affected evidence of applicant – whether evidence of witnesses contaminated – standard of proof in civil matters – s 140 Evidence Act 1995 (Cth).
Legislation: Australian Human Rights Commission Act 1986 (Cth) – ss 46PH(1)(i), 46PO
Disability Discrimination Act 1992 (Cth)
Evidence Act 1995 (Cth) – s 55, 59, 60, 62, 64, 76(1), 78, 83, 140(2) Pt 3.6
Evidence Regulations 2018 (Cth) – reg 7
Federal Court of Australia Act 1976 (Cth) – s 37M
Federal Court Rules 2011 (Cth) – rr 1,34, 16.07, 22.07
Sex Discrimination Act 1984 (Cth) – ss 28A, 28B, 94, 106
Workplace Relations Act 1996 (Cth) – s 298K
Cases cited: Adams v Director of the Fair Work Building Industry Inspectorate (2017) 258 FCR 257; [2017] FCAFC 228
Aldridge v Booth (1988) 80 ALR 1
Australian Competition and Consumer Commission (ACCC) v Francis (2004) 142 FCR 1; [2004] FCA 487
Australian Competition and Consumer Commission (ACCC) v Leahy Petroleum Pty Ltd (2007) 160 FCR 321; [2007] FCA 794
Ballard v Multiplex [2012] NSWC 426
Bennett v Everitt & Whyalla Fish Factory [1988] HREOCA 7
Bluescope Steel Ltd v De Caires [2005] NSWCA 431
Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579
Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66
Chan v Mazurkiewicz [2015] WASC 432
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; [2000] FCA 1531
Citadel Property Group (Rockdale No 1) Pty Ltd v Capital Financial Australia Ltd [2016] NSWSC 890
Cumaiyi v Northern Territory of Australia [2020] FCA 1299
Dye v Commonwealth Securities Limited [2012] FCA 242
Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118
Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92
Ewin v Vergara (No 3) (2013) 307 ALR 576; [2013] FCA 1311
Font v Paspaley Pearls [2002] FMCA 142
Hall v A & A Sheiban Pty Ltd & Ors (1989) 20 FCR 217
Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424; [2003] FCA 893
Hassell v Adelaide Magistrates Court [2008] SASC 132
Hoyle v The Queen (2018) 339 FCR 11; [2018] ACTCA 42
Hughes trading as Beesley and Hughes Lawyers v Hill (2020 382 ALR 231; [2020] FCAFC 126
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 4
Australian Competition & Consumer Commission v Commercial and General Publications Pty Ltd [2002] FCA 900
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886
Kraus v Menzie [2012] FCAFC 144
Leslie v Graham [2002] FCA 32
Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
Lulham v Shanahan, Watkins Steel & Ors [2003] QADT 11
Lustre Hosiery Ltd v York (1935) 54 CLR 134
McGuire v Reyes t/as Entrance Lakehouse [2017] NSWCATAD 50
McIlwain v Ramsey Food Packaging (2006) 154 IR 111; [2006] FCA 828
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754
Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207; [2015] FCAFC 130
Noble v Baldwin [2011] FMCA 283
Poniatowska v Hickinbotham [2009] FCA 680
Powell v Streatham Manor Nursing Home [1935] AC 243
R v Harker [2004] NSWCCA 427
R v Ping [2006] 2 Qd R 69; [2005] QCA 472
R v Verrall [2015] QCA 72
Re O’Neil [1972] VR 327
Richardson v Oracle Corp Australia Pty Ltd (2013) 232 IR 31; [2013] FCA 102
Robinson v Goodman [2013] FCA 893
Rongonui v R [2010] NZSC 92
Stanley v Service to Youth Council Inc (2014) 225 FCR 317; [2014] FCA 643
Styles v Clayton Utz (No 3) (2011) 255 FCR 364; [2011] NSWSC 1452
Subramaniam v Minister for Immigration & Multicultural Affairs [2002] FCAFC 255
Thirukkumar v Minister for Immigration & Multicultural Affairs [2002] FCAFC 268
Toben v Jones (2003) 129 FCR 515; [2003] FCAFC 137
Travers v New South Wales [2000] FCA 1565
Vale v Sutherland (2009) 237 CLR 638; [2009] HCA 26
Veen v R (1979) 143 CLR 458; [1979] HCA 7
Vergara v Ewin (2014) 223 FCR 151; [2014] FCAFC 100
Von Schoeler v Alan Taylor and Company Ltd t/as Boral Timber [2018] FCCA 3932
Worldwide Timber Traders Pty Ltd v Brouwer (No 2) [2009] FCA 447
Cross on Evidence (12th ed, LexisNexis Butterworths, 2020)
Eric Partridge A Dictionary of Slang and Unconventional English (8th ed, Routledge & Kegan Paul, 1984)
Oxford English Dictionary (3rd ed, 2019)
Date of hearing: 23, 24, 25, 26, 29, 30 and 31 July; 1, 5, 7, 8 and 30 August; and, 18 October Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 1202 Counsel for the Applicant: Mr L S Reidy Solicitor for the Applicant: Shand Taylor Lawyers Counsel for the Respondents: Ms L Reece Solicitor for the Respondents: Colin Biggers & Paisley ORDERS
QUD 349 of 2017 BETWEEN: RICHARD JAMIE LEE FORD
Applicant
AND: INGHAMS ENTERPRISES PTY LTD ABN 20 008 447 345
First Respondent
MICHAEL RAFFERTY
Second Respondent
BRENDEN WALDOCK (and others named in the Schedule)
Third Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
11 DECEMBER 2020
THE COURT ORDERS THAT:
1.The applicant’s oral application of 30 August 2019, to dispense with the notice requirement in s 97(1)(a) and s 98(1)(a) of the Evidence Act 1995 (Cth), be granted.
2.The originating application filed on 14 July 2017 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
Before the Court is a claim of discrimination under the Sex Discrimination Act 1984 (Cth) (SD Act) pursuant to the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The applicant (Mr Ford) lodged a complaint with the Australian Human Rights Commission (AHRC) on 6 October 2016. The complaint to the AHRC was unresolved and accordingly terminated by a delegate of the President of the AHRC pursuant to s 46PH(1)(i) of the AHRC Act.
On 14 July 2017 Mr Ford filed an originating application in which he alleged that the second to fifth respondents sexually harassed him, for which Inghams Enterprises Pty Ltd (Inghams), the first respondent, was vicariously liable. Mr Ford seeks an apology from each of the respondents, and compensation in the amount of $1,491,600.
The respondents submitted that the applicant’s case has not been substantiated and denied that much of the conduct alleged by Mr Ford occurred. The respondents sought the dismissal of the originating application and for the parties to be heard on costs.
In his statement of claim filed 29 September 2017, Mr Ford sought relief in the form of imposition of penalties on the first, sixth and seventh respondents pursuant to s 94(1) of the SD Act.
An amended statement of claim (amending dates and facts) was filed on 4 June 2018.
The trial commenced before me on 23 July 2019. The trial was conducted over 13 days, and 27 witnesses gave evidence orally. The evidence of some witnesses was lengthy. Mr Ford gave evidence over three days.
A further amended statement of claim was filed on 24 July 2019, which further amended dates in the amended statement of claim.
A redacted version of the further amended statement of claim (RFASOC) was filed by the applicant on 8 August 2019. It is convenient to have regard to the RFASOC for the purpose of the claims of Mr Ford, as it is this document on which Mr Ford relies.
BACKGROUND
The applicant and respondents filed statements of agreed facts on 22 December 2017 and 18 October 2019. Some of the following background derives from those agreed facts.
At the time of the hearing Mr Ford was approximately 49 years of age.
Inghams is an integrated poultry producer that supplies retail, restaurants and food service customers. The operations of Inghams includes seven primary processing facilities, five further processing facilities relating to cooked product, six distribution centres, eight hatcheries, over 250 farms and eight feedmills.
Mr Ford worked at the Inghams chicken processing factory in Murarrie in Brisbane from 6 February 2015 until September 2016. Mr Ford performed the duties of process worker, machine operator and forklift driver during his employment. At all times during his employment, Mr Ford worked afternoon shifts.
The respondents submitted that immediately prior to commencing employment with Inghams on or about 2 February 2015, Mr Ford completed training in accordance with Inghams’ detailed policy suite, including policies concerning inappropriate workplace behaviour (such as discrimination, harassment and bullying). The respondents submitted that Mr Ford could not have commenced employment with them without completing this mandatory training. Mr Ford deposed that he recalled undertaking an induction day with Inghams, but could not recall undertaking training despite his signature being on the relevant training competency questionnaire (transcript p 87 ll 3-45).
I am satisfied that Mr Ford did complete the mandatory training claimed by Inghams referable to, inter alia, inappropriate workplace behaviour, prior to commencing work with Inghams. In particular, prior to commencing his employment, Mr Ford completed:
·A document entitled “Fitness for work assessment applicants questionnaire”; and
·An online induction, which included the following modules: Work Health Safety & Injury Management; Animal Welfare Policy; WHS Access to Acts; Safety for Life WHS & Training Plan; Employee Induction/Questionnaire; Safety Rules; Environmental Awareness for Employees/Questionnaire; Environmental Policy; Employee Discrimination, Harassment & Bullying/Questionnaire; Employee Training PPE; Manual Handling Awareness/Questionnaire; Emergency & Evacuation Flip Chart; First Aid Register; Drugs and Alcohol Policy; and, Smoking Policy.
At material times, the Murarrie premises of Inghams included the following areas:
·the Red Area, being the live bird processing section (so-called because workers wore red clothes while working there), which comprised of:
(a)the loading dock;
(b)the hanging room, comprised of two lines;
(c)the feather room production area in which process workers would perform duties such as plucking feathers, replacing plucker fingers (which were rubber accoutrements used in chicken plucking machines) and checking machinery; and
(d)a locker room, where employees could get changed before or after work, and could spend time during work breaks;
·a staff carpark (at least for the period of February 2015 to September 2016); and
·an area of land contiguous to the security gate accessed from the staff carpark, in which there was a picnic table.
Whilst employed with Inghams, Mr Ford worked in the Red Area with fellow Inghams employees Mr Michael Rafferty (the second respondent), Mr Brenden Waldock (the third respondent), Mr Wade Phillips (the fourth respondent), and Mr George Mole (the fifth respondent). Materially:
·Mr Rafferty was employed as a process worker at Inghams from 23 August 2008 until 23 September 2016. During his employment he performed overtime in the feather room.
·Mr Waldock was employed as a process worker at Inghams on 5 January 2005, and remained employed by Inghams at the time of the hearing. During the relevant period of time, Mr Waldock at times acted as a leading hand. He also performed overtime in the feather room.
·Mr Phillips had been employed as a process worker for Inghams since about August 2007 and began an apprenticeship at Inghams in 2018. He remained employed by Inghams at the time of the hearing.
·Mr Mole had been employed as a process worker by Inghams since 2012 and remained employed by Inghams at the time of the hearing.
During the period in which Mr Ford was employed by Inghams, the following employees also performed duties in or referable to the Red Area:
·Mr Mark Chan, who was employed by Inghams from 2006 until May 2017. From November 2015 until September 2016, Mr Chan was Production Manager at the Murarrie facility.
·Mr Anthony Collett, who had been employed as a process worker by Inghams since 26 July 2013 and remained employed by Inghams at the time of the hearing. Mr Collett also carried out duties as a forklift driver.
·Mr Vaiyama Levaai Junior, who had been employed as a process worker by Inghams since April 2014 and remained employed by Inghams at the time of the hearing. Mr Levaai worked primarily in the hanging room and also carried out forklift duties.
·Mr Bijo Varghese, who had been employed as a process worker by Inghams since 28 June 2014 and remained employed by Inghams at the time of the hearing. Mr Varghese worked primarily in the hanging room.
·Mr Jason Flanders, who had been employed by Inghams in November 2003 and remained employed by Inghams at the time of the hearing. From February 2015 until September 2016, Mr Flanders was a leading hand in the Red Area.
·Mr Kelvin Lucht, who was employed by Inghams from 2000 until April 2017. In the period from February 2015 until September 2016, Mr Lucht was a leading hand in the Red Area.
·Mr Glenn Hannett, who was employed by Inghams from November 2003 until 14 July 2016. He was a supervisor in the Red Area from approximately February 2015 until July 2016. As part of his employment duties, Mr Hannett exercised supervisory functions in relation to Mr Ford and other employees who performed process worker duties in the Red Area.
·Mr Saxena Johnson Junior, who was employed by Inghams from February 2009 until April 2017. Mr Johnson was a trainer in the Red Area in the period from February 2015 until July 2016 and an acting supervisor in the Red Area from July 2016.
·Mr Edwin Okoro, who had been employed as a process worker by Inghams since October 2014 and remained employed by Inghams at the time of the hearing. He worked primarily in the hanging room.
·Mr Sumandeep Dhanoa, who had been employed as a process worker by Inghams since November 2014 and remained employed by Inghams at the time of the hearing. Mr Dhanoa worked primarily in the hanging room.
·Mr Jilali Rahiwi, who had been employed as a process worker by Inghams since June 2014 and remained employed by Inghams at the time of the hearing. Mr Rahiwi worked in the hanging and halal killing rooms.
·Mr Sanan Ly, who had been employed as a process worker by Inghams since 2013 and remained employed by Inghams at the time of the hearing. He worked mainly in the hanging room and also performed duties in the feather room. At the time of the hearing he worked in the despatch area at Inghams.
·Mr Kahu Ogg, who was employed by Inghams from 2008 until August 2018. Mr Ogg was a process worker in the Red Area, and worked on day shifts, but had previously worked the afternoon shift.
·Mr Jatin Bhardwaj, who was employed by Inghams from 2012 until February 2016. Mr Bhardwaj worked as a process worker in the hanging room and the feather room on the afternoon shift.
From October 2015 Mr Ford regularly performed overtime work in the feather room, and forklift duties as required in the loading dock at Murarrie. I understand that feather room work and forklift duties were duties preferred by process worker employees.
Mr Ford became friendly with Mr Waldock and Mr Phillips, socialising with them on occasion outside of working hours.
In June 2015 Mr Ford made a complaint to Mr Hannett, alleging verbal harassment and abuse of him by Mr Mole. It is not in dispute that, as a result of the complaint made by Mr Ford, Mr Mole received a written warning from Inghams.
Until July 2016 Mr Ford’s supervisor at Inghams was Mr Hannett. After Mr Hannett left Inghams, Mr Johnson became Mr Ford’s supervisor. Mr Ford believed that this change in supervisor resulted in an increase in his being rostered on less-preferred hanging duties, and that the amount of overtime Mr Ford worked was reduced.
On or about 14 July 2016 Mr Ford was involved in a motor vehicle accident on the way to work where he sustained a shoulder injury.
In early August 2016 there was an incident involving the “locking out” of trucks at the Murarrie premises. The precise nature of this issue was described differently by witnesses, however the following facts appear uncontroversial:
·it was a safety-related issue;
·conduct of Mr Ford was involved;
·Mr Rafferty reported this conduct of Mr Ford to Mr Johnson; and
·Mr Ford’s conduct was considered to be a serious safety breach.
There was a disciplinary hearing at Inghams in relation to this incident, during which Mr Collett acted as a support person for Mr Ford. On 9 August 2016 Mr Ford received a final written warning in respect of the lock out incident, and was removed from forklift duties indefinitely. Relevantly, a form entitled “Record of Employee Discussion Form” provided:
Nature and Details of Issue or Alleged Offence/s (include dates, times, specific unsatisfactory work performance, behaviour and/or conduct)
On Monday 8-8-16 at about 16.35 I, Sax Johnson was out in LBR doing checks on trailers lock out procedure. Both Line 2 Trailers being loaded and unloaded were not lockout. I, Sax approached the forklift operator Richard Ford as to why both trailers Were unlocked while being loaded and unloaded. Richard Ford said that he taught [sic] trailers were locked. A written warning will be issue [sic] to Richard Ford for not following Standard Work Procedure (SWP XLBR 004). This is a serious safety breach.
A handwritten “employee’s response” was included. It is difficult to read, however I understand it was signed by Mr Ford. It appears to state:
I have read the offence and am happy to [accept] the [responsibility].
On or about 15 August 2016 Mr Ford reported to the work, health and safety team at Inghams that he was suffering pain to his shoulder while working. I understand that Mr Ford claimed that this shoulder pain was referable to his motor vehicle accident the previous month. Notes of Mr Ford’s report of shoulder pain were made by Ms Emma Hines, the senior work health and safety co-ordinator at Inghams Murarrie. Mr Ford was placed on light duties at Inghams until 29 August 2016. He then returned to normal duties in the hanging room, without overtime, as and from 30 August 2016.
On or about the night of 30 August 2016 Mr Ford posted comments on Mr Kahu Ogg’s Facebook page. At [363] of his redacted affidavit sworn 4 June 2018, Mr Ford said:
By that time, I was in a very poor mental and emotional state. I was very unstable. I was extremely angry. I started drinking. I put things on Facebook of which I am extremely ashamed. I said very unpleasant things. Some of the language was vengeful.
Mr Ford’s comments on Facebook were as follows:
•‘Sooner or later shits going to hit the fan, can always find another job, put pain on, ill [sic] put pain on you and yours
•“just the way his wife is going to get it up the ass, hard as… tie the cunt up and make him watch!!”;
•“time to start facebook stalking, lol”;
•“Hope you read this to you pack of fucken ho mo cunts”; and
•“Yep, have to wait now for the investergating [sic]. Then wait for heads to roll and then compensation”.
Mr Ford gave evidence that the post was directed at Mr Johnson (transcript p 229 ll 22-30) and the comment “his wife is going to get it up the ass, hard…” was directed at Mr Johnson’s wife (see [367] of Mr Ford’s 4 June 2018 affidavit). At the hearing, Mr Ford deposed that he knew the Facebook posts would be shown to others at Inghams and that “it would annoy a lot of people” (transcript p 155 ll 30-31).
On 31 August 2016 Mr Ford had a discussion with members of the work, health and safety department about his inability to continue working that day due to his shoulder pain, which conversation is again recorded in the notes of Ms Hines. Mr Ford alleged that during this discussion, he also raised allegations of sexual harassment he had been experiencing.
On 1 September 2016 Mr Ford informed his wife Ms Hanner of alleged incidents of sexual harassment at Inghams. On or about 2 September 2016 Mr Ford spoke with Ms Hanner about the more serious incidents of sexual harassment to which he alleged he had been subjected.
On or about 2 September 2016 Mr Flanders brought Mr Ford’s Facebook posts to the attention of Mr Chan.
On Friday, 2 September 2016, Mr Ford made a verbal complaint to Mr Chan which included allegations of sexual harassment, in particular that he had been poked up the anus by co-workers. Mr Ford claimed that Mr Chan responded with words to the effect that the other workers had been doing a “John Hopoate” to Mr Ford. (I understand that this alleged reference was to a well-known finger-poking incident involving professional rugby league player John Hopoate.) Insofar as I can ascertain, including by reference to the transcript and Mr Chan’s affidavit, Mr Chan did not admit to having made this comment – rather he stated that he could not recall the conversation with Mr Ford (transcript pp 777-778).
Mr Ford also stated that Mr Chan was “uninterested” and “spoke more about my Facebook messages and was only concerned about that”. Mr Chan denied this, stating that he explained Inghams’ policy regarding inappropriate workplace behaviour, and mentioned that he was aware of a series of Facebook posts, but would discuss the issue with Mr Ford when he returned to work on Monday.
Mr Chan told Mr Ford that he could have the remainder of the day off work, and to return the following Monday to discuss the matter with him further. Mr Ford gave evidence that he was told to put his sexual harassment complaint in writing.
On 4 September 2016 Mr Ford attended a local doctor and complained of sexual harassment at his workplace.
On Monday, 5 September 2016, Mr Ford returned to Inghams at Murarrie to speak with Mr Chan. He gave Mr Chan two formal written complaints – one complaint making allegations of sexual harassment, and one making allegations of victimisation. Mr Ford stated that he provided the complaint of victimisation first to Mr Chan, who allegedly responded “is that it?” Mr Ford then left Mr Chan’s office, but shortly returned with a written complaint of sexual harassment.
The first complaint provided by Mr Ford to Mr Chan was as follows:
To whom it may concern,
I have been employed by Inghams since February 2015, I have always been a hardworking and reliable and took minimal days off. I have always been happy to do any job that was asked of me.
Because of that hard work and being so reliable although I started hanging I soon moved onto helping out on the forklifts and have been steadily in the feather room for the last 14 months. I also managed to get offered regular overtime during that time by always being available and ready to help when needed.
I started doing overtime in August of 2015 just filling in a couple of hours a week and the odd Saturday and by October of 2015 I was on the regular overtime shift averaging 5 hours or more a week, this continued until July of 2016.
When the current supervisor was in the process of taking over his current position I noticed that my overtime had started to reduce and on one occasion was told to go home instead of my regular overtime shift which is rotated with two other people, I asked if he wanted me to lock the knives etc away and he said no just go home! against my better judgement but as per his instructions they were left in the feather room and I went home.
Approximately a week before receiving a written warning an anonymous note was given to OH&S about concerns with the forklift drivers constantly on their phones while
working/driving. Assuming it was me there were massive changes in his attitude to me and felt like he had it in for me.
A week later I was given a written warning for not locking the truck lockout padlock, Not locking this happens on a regular basis by most employees that are responsible for it yet I was the only one that was given a written warning for it.
While I was in the office receiving the written warning I voiced my concerns about the forklift drivers that are constantly on their phones while driving and that the supervisor and leading hand both knew about it, the next week I was rostered on back in the hanging room. No one else had a change to their duties.
That week I was rostered on the forklift. I worked on the forklift on the Monday, Tuesday and Wednesday and then was on sick leave for the Thursday and Friday due to my shoulder which my supervisor knew, on the Friday I found out I was hanging on line 2 the following week, I approached the supervisor and let him know that I struggle with line 2 as this is the fastest line, I had not been hanging except for filling in for at least 12 months. He was hostile with me and told me that I was employed as process worker and that hanging was part of my job.
Due to a shoulder injury I was put on light duties for two weeks, once I was ready to go back to full duties it was advised by OH&S that it would not be recommended to hang for the first week, the supervisor had me back hanging within a day.
There had also been talk from the supervisor to the other workers that I had been faking my shoulder injury even though I had provided the full medical certificate showing that there was a tendon tear and fluid on the shoulder.
Knowing I had shoulder injury the supervisor lacked due care in placing me back in the hanging birds role as the average birds hung per day is approx. 65,000 over 7 stations making it approx. 9,285 birds hung in a shift with the bird averaging 3.5kg each so each station would lift approx. 26,000 kg in a shift.
There is always talk around the factory that if they want to get rid of someone they put them in the hanging room to break them and make them leave.
While I was on light duties I was in the feather room, once I had been cleared fit for full duties I saw the roster and I was in the feather room again I assumed this would be for the rest of the week as it normally would be. On the Tuesday a worker came back from leave that was fully fit and able and they took me out of the feather room to hanging and the other worker was put in the feather room.
Usually when people take time off from the feather room, forklift etc when they return they do not usually return to those duties for that week.
Since my return from light duties I have not been rostered on the forklift or the feather room while others have taken time off and even crashed the forklift and both have continued to be rostered in these roles.
I feel that because I'm not afraid to talk to the higher level bosses and tell the truth about what goes on in the red area I am being targeted and being singled out and victimised.
Last week with all the emotional stresses of the last few months the constant feeling of being targeted and them trying to push me out I did make inappropriate comments on facebook while talking with other workers, I am ashamed and regretful of the comments I made and it is completely out of character for me to make such comments, at the time I was venting and was at the end of my rope and was venting my frustration. These comments were made in the heat of the moment and shouldn't have not been made.
(Errors in original.)
The complaint relating to alleged sexual harassment was as follows:
To whom I may concern
Since I have been employed at Inghams I have witnessed inappropriate behaviour on a number of occasions, after approx. 6 months the behaviour was also directed at me, in the form of trying to force their fingers up my anus, grabbing my penis, dry humping (by two people, one on either side), patting on buttocks, hugging, rubbing their crutches on you, pretending to have anal sex if you bend over and pretending to perform oral sex.
There is a dysfunctional culture within the red area, you do not dob on your mates even if those so called mates are the ones doing the abusing for fear of reprisals. This culture has kept myself and others from reporting abuse for fear of being further abused and mistreated and has been covered up by senior staff.
Once I had been there for approx. 6mths and was integrating into the main group and been included as part of the regular overtime crew they started to focus their inappropriate behaviour towards me on a daily basis.
Michael Rafferty is one of the main perpetrators and has performed inappropriate sexual acts on me on a regular basis.
Upon hearing grievances from Michael Rafferty about another worker talking to him inappropriately and Michael had told him to stop doing that, found it to be an appropriate time to tell him I did not like what he was doing to me and to stop.
After the above incident, while in the feather room up on a stand I had been approached from behind from Michael Rafferty trying to insert his finger up my anus and I turned to him and told him I did not like and to stop his reply was doesn't Brendan [sic] do that to you to and I told him no!
I am not the only worker that is suffering this type of abuse, the Supervisor and two Leading Hands know and have witnessed the inappropriate sexual behaviour and have turned a blind eye allowing this behaviour to continue.
There has been no action taken from the people in charge of the red room even though they themselves have witnessed it, nor have there been any measures put in place for the safety and well being of the victims allowing Michael Rafferty, Brendan [sic] Waldock and Wade Phillips to continue abusing myself and other workers.
On the 18th of August I was speaking to Jenna the trainer about various things during this conversation I did tell her what had been happening at Inghams and the sexual abuse that had been going on for years. I also approached her again on Friday 2nd September and told her that I was going to see Mark Chan about the abuse and sexual harassment.
Due to the ongoing sexual harassment I am on edge all the time at work and am always worried that if try to break to code of silence and speak up I will be targeted, victimised and my work life will be made unbearable so I either leave or am fired.
Talking with other workers about speaking out and coming forward in attempt to put an end to the ongoing sexual harassment at Inghams and to ensure that the workers have a safe working environment for both current and future workers. Kahu Ogg and Sanan who have also been subject to this behaviour are willing to speak out.
(Errors in original.)
After giving Mr Chan these written complaints, Mr Ford left work. Mr Ford’s last day of work at the Inghams’ workplace was 5 September 2016.
Mr Chan commenced an investigation into Mr Ford’s complaints, which included conducting initial verbal discussions with employees named by Mr Ford in those complaints.
On 5 September 2016 Mr Ford attended the Beenleigh police station where he allegedly made a formal complaint of the alleged sexual harassment he claimed to have experienced at Inghams. Insofar as I am aware, no police action occurred as a result of Mr Ford’s complaint. Mr Ford claimed that the police advised him to lodge a formal complaint with the AHRC.
On or about 14 September 2016 Mr Ford lodged a complaint with the AHRC. He subsequently withdrew that complaint and instructed his solicitors to lodge a fresh complaint dated 6 October 2016 (AHRC complaint). In that complaint Mr Ford alleged sexual harassment within the workplace, discrimination in employment on the grounds of disability, and victimisation in employment. I will turn to the AHRC complaint shortly.
On or about 18 September 2016 Mr Ford commenced a worker’s compensation claim in respect of work-related psychiatric illness.
On or about 22 September 2016 it appears that Mr Chan’s internal investigation ceased and the investigation was taken over by the human resources team at Inghams.
On 19 January 2017 Mr Ford was informed that Inghams had denied his workers’ compensation claim. On 6 April 2017 Mr Ford applied to the Workers’ Compensation Regulator for a review of the decision. On 7 July 2017 the Workers’ Compensation Regulator set aside the decision and determined that Mr Ford’s worker’s compensation claim be accepted. Inghams appealed against this decision on 7 August 2017 to the Queensland Industrial Relations Commission, but discontinued the appeal on or about 20 February 2018.
BTLAWYERS EXTERNAL INVESTIGATION
On 23 September 2016 Inghams briefed law firm BTLawyers to conduct an external investigation (workplace investigation). The investigators were John Salter and Betsy Bargh. The scope and coverage of the workplace investigation were set out in the subsequent BTLawyers report, as follows:
The scope of this investigation is confined to certain historical events which are alleged to have taken place at Inghams’ production facility located at Goodman Place, Murarrie in Queensland, extending over a period from August 2015 to September 2016.
Those events are alleged to have primarily taken place inside a confined area of the production facility located at its eastern extremity and colloquially identified and referred to as “the red area” and in the male locker room, either before or after work had commenced or ceased on particular shifts. There is one incident which is alleged to have occurred at the entry gate of the production facility.
The red area receives and processes live birds to a point of evisceration, de-feathering and its geographical limits is notably recognisable by signage and that the colour of work clothing of production employees who work there is a maroon tinged red. This is in contrast to, and segregation from “the white area”, white being the colour of clothing worn by production employees who further process the birds following exit from the red area.
Furthermore, the events are alleged to have taken place on the fixed afternoon shift, a shift where work (other than when sporadic periods of overtime are required) commences at about 1.30 pm and concludes at about 10 pm Monday to Friday.
The workplace investigation objective was described as follows:
The objective of the investigation is to provide a report to Inghams as to:
•on the balance of probability, the likely accuracy and veracity of the allegations made by Mr Ford; and
•identify any potential risks to Inghams emerging from the findings; and
•recommend to Inghams any action it should consequently take with respect to any of its employees
In the BTLawyers investigation report dated 15 December 2016, Mr Ford’s allegations were summarised as:
4.1 Generic
4.1.1During the period of his employment from February 2015, Ford witnessed inappropriate sexual behaviour including sexual assault towards employees generally and from approximately August 2015, he was subjected to sexual assault and harassment in the workplace on a daily basis.
4.1.2 There is a fearful culture within the Inghams’ Murarrie red area which inhibits and/or prevents reporting of sexual harassment, abuse and/or assault.
4.1.3 Various representatives of management know of and have directly witnessed workplace sexual harassment, abuse and/or assault. However, they have collectively and individually turned a blind eye, allowing it to continue unabated.
4.2 Specific
4.2.1 From August 2015 to 4 September 2016, Ford witnessed such behaviour being directed to other employees including:
•On or about 16 August 2016, Brendan [sic] Waldock was seen dry humping Vaiyama Junior Leveai whilst audibly stating “a big black monkey with a big banana in his pants”;
•Kahu Ogg had a metal pole inserted into his anus;
•Employees exposing their genitalia to others;
•Forcible intrusion of fingers by employees into others anuses; and
•Employees engaging in acts of simulation of anal and oral sex.
4.2.2 From August 2015 until 4 September 2016 Ford was sexually harassed and assaulted by fellow machine operators/forklift drivers Michael Rafferty, Brendan [sic] Waldock, Wade Phillips and George Mole, individually or collectively on a daily basis.
4.2.3 In June 2015, Ford lodged a written complaint against George Mole alleging that during workplace conversation Mole called him “a cocksucker” and further stated that he (Ford) “took it up the arse” and “sucked the bosses cock”. Furthermore, despite Mole receiving a written warning from management about this abuse, Ford continued to be habitually abused by Mole on a weekly basis between August 2015 and September 2016. And further still, supervisor Jason Flanders knew of this continuing abuse, but did nothing about it.
4.2.4 Whilst employed at Inghams, Ford had his pants pulled down on more than one occasion.
4.2.5 On an unspecified date and time, while Ford was sorting out his work gear before entering the entry gate at the western extremity of the factory, Phillips proceeded to put his finger up his bottom from behind, which shocked and humiliated Ford.
4.2.6 In August 2015, whilst Ford was working in the feather room, Rafferty approached him with stealth from behind and attempted to insert his finder into Ford’s anus.
4.2.7 On or about 2 September 2016, Ford attended a meeting with Production Manager Mark Chan, wherein Ford verbally complained about the sexual harassment and assault to which he had been exposed, to which Chan reacted flippantly, suggesting that Rafferty, Waldock and Wade Phillips were “doing the John Hopoate”.
4.2.8 On or about 5 September 2016, Ford lodged a formal written complaint which Chan has not taken seriously, and it has been “swept under the carpet”. Furthermore, it is alleged this is Chan’s normal approach to any such complaint.
4.2.9 Kahu Ogg and Sanan Ly have been subjected to sexual harassment in the workplace whilst working at Inghams.
4.2.10 In July and August 2016, supervisor Saxena Johnson Jnr discriminated against Ford in the workplace because Johnson Jnr believed Ford was faking a journey related shoulder injury by reducing the amount of overtime Ford was allocated and by allocating him hanging duties for which Ford was ill suited, given his physical restrictions.
4.2.11 Because Ford was unafraid to talk to higher level bosses and tell the truth, he has been targeted, singled out and victimised by Mark Chan, Saxena Johnson Jnr, Jason Flanders, Kelvin Lucht, Brendam Waldock, Wade Phillips, Michael Rafferty and George Mole.
At para 5.1 of the report, the investigators stated that they inspected the workplace twice during normal operating hours, namely on 4 November 2016 at approximately 10.30 am and again on 10 November 2016 at approximately 2.00 pm. The investigators stated that they had closely scrutinised all areas where incidents alleged by Mr Ford had occurred, including all facets of the Red Area operations, the men’s locker room and the entry/egress point of the production facility. The investigators also interviewed:
·Kahu Ogg;
·Sunandeep Dhanoa;
·Kurt Mahyika (a process worker);
·Jilali Rahiwi;
·Emma Hines;
·Edwin Okoro;
·Vaiyama Levaai;
·Kelvin Lucht;
·Brenden Waldock;
·Jason Flanders;
·Mark Chan;
·Sanan Ly;
·Jenna Mae Horne (a training officer);
·Wade Phillips;
·George Mole; and
·Saxena Johnson Jnr.
The investigators did not interview Mr Rafferty, but spoke with him on the telephone.
The investigators concluded that Mr Ford’s allegations were not substantiated. Materially, the investigators concluded that:
·the overwhelming evidence of management and employees of Inghams was at odds with Mr Ford’s various versions of events;
·an event in 2015 involving a former employee named Jordan Hill prodding Mr Ogg in the buttocks with a metal pole had been immediately dealt with by Inghams;
·the only interviewee who attested to the existence of workplace behaviour even remotely resembling that which Mr Ford alleged was Mr Ly, however the investigators did not regard Mr Ly as reliable, and further considered that he had “an axe to grind with his previous supervisor Glenn Hannant [sic]”; and
·there was a potential risk to Inghams arising from the delay in initiating the complaint process after Mr Ford’s formal complaint, however this delay was defensible in light of the nature of the complaints and the number of people involved.
THE AHRC COMPLAINT
In his AHRC complaint dated 6 October 2016, Mr Ford claimed that during the period from August 2015 to 4 September 2016:
·he had been sexually harassed and sexually assaulted by Mr Rafferty, Mr Waldock and Mr Phillips “on a daily basis”;
·he had witnessed behaviour amounting to sexual harassment, sexual assault and sexual abuse occurring, and directed, towards other employees;
·he had been verbally harassed by Mr Mole on a weekly basis;
·he had been discriminated against because of his disability by Mr Johnson; and
·he had been victimised by Mr Rafferty, Mr Waldock, Mr Phillips, Mr Mole, Mr Johnson and Mr Chan.
In his AHRC complaint, Mr Ford stated that he thought the complaint could be resolved by financial compensation and letter of apology.
A conciliation conference was held on 24 March 2017, but the AHRC complaint was not resolved. The complaint was subsequently terminated on 17 May 2017 under s 46PH(1)(i) of the AHRC Act, on the basis that the President was satisfied that there was no reasonable prospect of the matter being settled by conciliation.
APPLICATION TO THE COURT
On 14 July 2017 Mr Ford filed an originating application under the AHRC Act. In order, the respondents were as follows:
(1)Inghams;
(2)Michael Rafferty;
(3)Brenden Waldock;
(4)Wade Phillips;
(5)George Mole;
(6)Saxena Johnson Jnr; and
(7)Mark Chan.
In this application, Mr Ford claimed, in summary, as follows:
(1)The second, third, fourth and fifth respondents had sexually harassed him:
(a)In the case of the second to fourth respondents, by various of them either engaging in, encouraging or being concerned in assaults of a sexual nature or engaging in unwelcome conduct of a sexual nature or using language of a sexual nature over a sustained period, including:
(i)acts of digital anal assault;
(ii)indecent sexual acts such as touching Mr Ford’s penis and rubbing genitalia on Mr Ford;
(iii)performing simulated sexual acts on Mr Ford;
(iv)exposing genitals to Mr Ford;
(v)abusive language of a sexual nature;
(vi)language of a sexual nature; and
(vii)performing acts of a sexual nature in respect of or on other persons in the workplace; and
(b)In the case of the fifth respondent, using abusive language of a sexual nature and language of a sexual nature to Mr Ford.
(2)By reason of s 106 of the SD Act, Inghams was vicariously liable for the sexual harassment by the second, third, fourth and fifth respondents.
(3)Inghams and the fifth, sixth and seventh respondents victimised Mr Ford contrary to the SD Act.
(4)Inghams and the sixth respondent discriminated against Mr Ford on the ground of disability.
(5)Inghams and the sixth respondent harassed Mr Ford in relation to his disability.
(6)Inghams and the sixth respondent victimised Mr Ford contrary to the Disability Discrimination Act 1992 (Cth).
Mr Ford sought an apology from each of the respondents, and compensation in the amount of $1,491,600.00.
During the course of the hearing, Counsel for the applicant informed the Court that the applicant was no longer pressing any claims:
·under the Disability Discrimination Act 1992 (Cth) or in relation to victimisation or disability discrimination (paras 91 to 101 in the statement of claim);
·against Mr Saxena Johnson and Mr Mark Chan; or
·for relief that sought the imposition of penalties on the first, sixth and seventh respondents pursuant to s 94(1) of the SD Act.
Subsequent to the filing of the RFASOC, the applicant indicated that he did not press his pleaded claim of unwelcome sexual advances or implied requests for sexual favours against Mr Rafferty, Mr Waldock or Mr Phillips: see RFASOC at 58(b), 64(b) and 76(b).
The first, third, fourth and fifth (and originally named sixth and seventh) respondents filed a defence on 30 October 2017, and an amended defence on 8 August 2019.
The second respondent, Mr Rafferty, filed a defence on 27 October 2017 and an amended defence on 9 July 2018.
The applicant filed replies to the defence of the second respondent and the defence of the first and third to fifth respondents on 10 November 2017. The applicant filed an amended reply, in response to the amended defence of the first and third to fifth respondents, on 8 August 2019.
I note that in the amended defence of the first, third, fourth and fifth respondents, their denial of para 102 of the RFASOC has been struck out. It is unclear why they have done so. The second respondent, by his amended defence, maintained his denial of the claim in para 102 of the RFASOC insofar as it related to him. This is an issue which would properly arise in the event that contraventions are established.
At the hearing, Mr Ford was represented by solicitors and Mr Reidy of Counsel. All respondents were represented by solicitors and Ms Reece of Counsel.
AGREED ISSUES FOR DETERMINATION
On 21 September 2019 a statement of agreed issues for determination was filed in the proceedings (Agreed Issues). These Agreed Issues were as follows:
1. Whether any of the following events occurred:
Alleged physical conduct to the Applicant
(a) The Second Respondent or the Third Respondent engaged in the conduct of patting or slapping or suggestively rubbing Mr Ford’s buttocks in the period from August 2015 to about September 2016 usually in the feather room and sometimes in the locker room as alleged in paragraph 15 of the Redacted Further Amended Statement of Claim (RFASOC).
(b) The Second Respondent or the Third Respondent engaged in the conduct of performing simulated genital sex acts otherwise known as dry humping on the Applicant in the period from around August 2015 to about September 2016 in the feather room and the locker room as alleged in paragraph 18 of the RFASOC[.]
(c) The Second Respondent or the Third Respondent engaged in the conduct of performing acts of simulated oral sex on the Applicant in the period from around August 2015 to about September 2016 in the feather room and the locker room as alleged in paragraph 21 of the RFASOC.
(d) The Second Respondent or the Third Respondent engaged in the conduct of performing acts of simulated anal sex on the Applicant in the period from around August 2015 to about September 2016 in the feather room as alleged in paragraph 22 of the RFASOC.
(e) The Second Respondent or the Third Respondent engaged in the conduct of pulling down the Applicant’s pants on two occasions in the period from around August 2015 to about September 2016 in the feather room as alleged in paragraph 25 of the RFASOC.
(f) The Second Respondent in about November 2015 engaged in the conduct of using his finger to poke the Applicant in the anus in the feather room as alleged in paragraph 28 of the RFASOC.
(g) The Second Respondent in about early 2016 engaged in the conduct of using a squeegee mop handle to poke the Applicant in the anus in the feather room as alleged in paragraph 31 of the RFASOC.
(h) The Third Respondent in about August 2016 engaged in the conduct of grabbing the Applicant’s penis in the feather room as alleged in paragraph 34 of the RFASOC.
(i) The Third Respondent in about August 2016 engaged in the conduct of putting his finger into the Applicant’s anus in the feather room as alleged in paragraph 40 of the RFASOC.
(j) The Fourth Respondent in about February 2016 engaged in the conduct of using his finger to poke the Applicant in the anus at a picnic table near the security gate entrance to the First Respondent's Murarrie facility as alleged in paragraph 70 of the RFASOC.
Alleged exposing buttocks
(k) The Third Respondent in about July 2016 engaged in the conduct of pulling down his pants and exposing his buttocks to the Applicant in the feather room as alleged in paragraph 37 of the RFASOC.
Alleged witnessed conduct
(l) The Third Respondent in about March 2016 engaged in the conduct of poking his finger into or in the region of Kelvin Lucht’s anus in view of the Applicant in the feather room as alleged in paragraph 43 of the RFASOC.
(m) The Second and Third Respondents engaged in the conduct of performing the simulated genital sex act known as dry humping on Glenn Hannett in the sight of the Applicant in the feather room as alleged in paragraph 46 of the RFASOC.
(n) The Second and Third Respondents in about June 2016 in sight of the Applicant engaged in the conduct of encouraging Anthony Collett to pull down his pants and expose his genitals in the feather room as alleged in paragraph 49 of the RFASOC.
(o) The Third Respondent, with Anthony Collett, in about July 2016 in sight of the Applicant engaged in the conduct of performing a simulated genital sex act on Vaiyama Junior Levaai in the feather room as alleged in paragraph 52 of the RFASOC.
(p) The Second and Third Respondents in about August 2016 in sight of the Applicant engaged in the conduct of performing acts of simulated oral and anal sex on Bijo Varghese in the feather room general area as alleged in paragraph 55 of the RFASOC.
(q) The Fourth Respondent in about late July or early August 2016 in sight of the Applicant engaged in the conduct by exposing his testicles and rubbing them on Bijo Varghese in the locker room as alleged in paragraph 73 of the RFASOC.
The words used by the Fifth Respondent
(r) The Fifth Respondent engaged in the conduct of calling the Applicant a “cocksucker” from about August 2015 to September or whether the Fifth Respondent engaged in the conduct of, saying to the Applicant that he “sucked the bosses cock” and that Mr Ford “takes it up the arse” in the locker room in about July or early August 2016 or whether the Fifth Respondent engaged in the conduct of saying to the that the Applicant “likes takes it up the arse” in the locker room in about November 2015 as alleged in paragraph 82 of the RFASOC.
2. The credit of the following witnesses:
(a) Mr Ford;
(b) Ms Hanner[;]
(c) Mr Rafferty;
(d) Mr Waldock;
(e) Mr Phillips;
(f) Mr Mole;
(g) Mr Lucht;
(h) Mr Hannett;
(i) Mr Collett;
(j) Mr Varghese;
(k) Mr Levaai;
(l) Mr Flanders;
(m) Mr Johnson;
(n) Mr Okoro;
(o) Mr Chan;
(p) Mr Ogg;
(q) Mr Bhardwaj; and
(r) Mr Ly.
3. If any of the Witnessed Conduct as alleged (paragraph 1(l) to (q)) is found by the court, whether it is within the jurisdiction of the court.
4. Whether any of the alleged conduct in paragraph 1 above, if found by the court, was sexual harassment within the meaning of section 28(1)(b) [sic] of the Sex Discrimination Act 1984 (Cth).
5. Whether the First Respondent is vicariously liable for any of the alleged conduct at paragraph 1 above, if found by the court.
6. Whether or not the court prefers the expert opinion of Dr Byth or Dr Shaikh in respect of:
(a) current diagnosis;
(b) impact of what, if any, behaviour the Applicant experienced when performing work for the First Respondent;
(c) the contribution of the Applicant’s:
i. medical history, including mental ill-health;
ii. social history; or
iii. family history[;]
(d) to the Applicant’s current diagnosis[;]
(e) the Applicant’s ability to return to work as a result of any temporary or permanent impairment; and
(f) any medical treatment the Applicant may or may not require.
7. Objections to the following evidence:
(a) the affidavit of Jatin Bhardwaj Exhibit #6(A) filed 14 June 2019;
(b) the affidavit of Kahu Ogg Exhibit #15(A) filed 14 June 2019;
(c) the affidavit of Sanan Ly Exhibit #18(A) filed 14 June 2019;
(d) the evidence referred to in 30 pages of objections filed for the Respondents;
(e) the evidence of complaints of the Applicant to Mr Ogg, Mr Bhardwaj, Mr Ly and Ms Hanner on the basis of hearsay;
(f) tendency and coincidence evidence;
(g) admissibility of evidence of Dr Byth[.]
These Agreed Issues provide a useful commencement point for consideration of the claims of Mr Ford.
The parties agreed that the scope of the Court’s jurisdiction is an issue for determination. Agreed Issue 3 is whether, if any of the witnessed conduct as alleged (paras 1(l) to (q)) is found by the Court, it is within the jurisdiction of the Court. This is a threshold issue in respect of the Court’s consideration of this part of the case.
I will deal with this issue before turning to the evidentiary matters before the Court and specific consideration of the claims of the applicant.
SCOPE OF JURISDICTION
Background
Specifically, part of the applicant’s claim before this Court relates to alleged witnessed conduct, consisting of Agreed Issues 1(l) to 1(q).
At the hearing, Counsel for the applicant submitted that, notwithstanding the operation of s 46PO, the applicant made reference to this alleged witnessed conduct in the complaint before the AHRC. At para 8 of the AHRC complaint, Mr Ford stated:
8. I have also witnessed the above behaviour being performed and directed towards other employees and in particular recall the following events:
(a) on or about 16 August 2016 I witnessed an employee dry humping and making racial comments such as “big black monkey with a big banana in his pants” to another employee;
(b) metal poles being poked up employee’s bottoms by other employees;
(c)employees exposing their “private parts” to other employees;
(d) fingers being poked up employee’s bottoms by other employees;
(e)employees pretending to have anal sex with other employees; and
(f) employees pretending to receive oral sex from other employees.
I understand this behaviour was reported to senior staff members at lnghams, but no action was taken.
Counsel for the applicant submitted that the events, whilst unspecified in terms of individuals involved, or location and timing, all correlated to incidents raised in the RFASOC.
I note there was no reference in Mr Ford’s RFASOC to any event referable to para 8(b) of the AHRC complaint.
On this basis, Counsel for the applicant submitted that the matters appeared with clarity in the complaint to the AHRC, and therefore there should be no issue with the Court’s jurisdiction.
In their opening submissions, the respondents argued that the Court must determine the parameters of the complaint which was terminated by the Commission. The respondents argued that Mr Ford’s application was not a substantially similar complaint to his AHRC complaint, both in subject matter and due to its scope, going beyond the AHRC complaint which was terminated.
The respondents, in their closing submissions, submitted that the individuals allegedly the subject of the incidents did not participate in or appear during the AHRC process, and did not have a right of response until these proceedings. The respondents further submitted that the Court should dismiss the alleged witnessed conduct from the applicant’s claim, for want of jurisdiction, as the applicant, by omitting the incidents from the AHRC complaint, failed to give the parties an opportunity to resolve that part of the dispute in the AHRC and, in effect, bypassed the AHRC to first articulate the alleged incidents in this Court.
Consideration
Section 46PO(3) of the AHRC Act relevantly provides as follows:
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
In considering whether the alleged witnessed conduct can form part of the applicant’s complaint before this Court, the Court must be satisfied that the conduct has been previously the subject of a complaint to the Commission which was terminated.
The most recent Full Court authority considering s 46PO(3) is Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118. In that case, their Honours said as follows:
46. Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J’s decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93–94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).
47. As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F-G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580–581 [35]–[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39].
48.The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act….And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach “not bound by technicality”...
The section has also been the subject of consideration by single Judges of this Court. Recently, in Cumaiyi v Northern Territory of Australia [2020] FCA 1299, White J observed:
14.Section 46PO(3) has now been considered in several authorities and some matters concerning the approach to its application can be taken to be settled:
(a)section 46PO does not provide for a general statutory cause of action available to anyone who may at any time have been affected by the unlawful discrimination. It is available only to those who made the complaint or on whose behalf the complaint was made (see the definition of “affected person” in s 3(1)) and it lies only in respect of the subject matter of the complaint to the AHRC: Grigor‑Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450 at [18];
(b) the legislative purpose is to define and filter the cause of action created by s 46PO so that it will correspond, within the limits contained in subs (1) and (3), with the complaint terminated by the President of the AHRC: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [43]: Grigor‑Scott at [19];
(c) subsection (3) indicates that the unlawful discrimination alleged in the application to the Court must either be the same as, or the same in substance as, the unlawful discrimination which was the subject of the terminated complaint or must arise out of the same or substantially the same acts, omissions or practices which were the subject of the terminated complaint: King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8; (2012) 286 ALR 149 at [25]; Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573 at [39]. It means that a terminated complaint cannot be used to launch an application to this Court or the FCC concerning “conduct substantially wider – or beginning substantially earlier – than that initially complained of”, with the effect that the procedures provided for in the AHRC Act are effectively bypassed: Travers v New South Wales [2000] FCA 1565 at [8]. I understand the reference of Lehane J in Travers to the conduct about which the complainant “initially complained” to be a reference to the conduct which was the subject of the complaint to the AHRC, including any amendments of that complaint or other elaborations of it to which occurred while the complaint was current in the AHRC, and not a reference to the complaint as initially lodged with the AHRC;
(d) by limiting the subject matter of applications to this Court pursuant to s 46PO(1), subs (3) necessarily limits the exercise of power by this Court: Charles v Fuji Xerox at [35]. In this way s 46PO(3) indicates that the jurisdiction of this Court and of the FCC is available only if the allegations in an application do not travel in substance beyond the allegations made in the complaint to the AHRC: Stepien v Department of Human Services [2018] FCA 1062 at [13];
(e)the subsection does not prevent an amendment which does no more than put a different legal complexion on the same or substantially the same acts, omissions or practices: King v Jetstar Airways at [28]; and
(f)the gateway or filter requirement in s 46PO(3) should be viewed as a practical one, and not as duly technical. It should not be approached in the same manner as are pleadings: Hastwell v Kott Gunning [2017] FCA 1557 at [26].
Justice White noted the examination by Katz J of the two limbs of s 46PO(3) in Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; [2000] FCA 1531, where his Honour said:
38 Paragraph (a) of subs 46PO(3) of the HREOCA proceeds on the basis that the allegations of fact being made in the proceeding before the Court are the same as those which were made in the relevant terminated complaint. The provision naturally permits the applicant to claim in the proceeding that those facts bear the same legal character as they were claimed in the complaint to bear. However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.
39 Paragraph (b) of subs 46PO(3) of the HREOCA, on the other hand, permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character “arise[s] out of” the facts which are now being alleged.
I am satisfied that the unlawful discrimination alleged in the RFASOC (and identified in Agreed Issues 1(l)-1(q)) is the same, or the same in substance, as the unlawful discrimination that was the subject of Mr Ford’s terminated complaint in the AHRC within the meaning of s 46PO(3)(a) of the AHRC Act. In particular, I consider it clear that:
·para 8(a) of the AHRC complaint refers to the incident where Mr Ford alleged that Mr Waldock and Mr Collett performed a simulated sex act on Mr Levaai, pleaded at para 52 of the RFASOC;
·para 8(c) of the AHRC complaint refers to the incident where Mr Ford alleged that Mr Rafferty and Mr Waldock encouraged Mr Collett to expose his penis, pleaded at para 49 of the RFASOC, and Mr Phillips’ alleged conduct where he exposed his testicles and slapped them on Mr Varghese, pleaded at para 73 of the RFASOC;
·para 8(d) of the AHRC complaint refers to the incident where Mr Ford alleged that Mr Waldock poked his finger into the region of Mr Lucht’s anus, pleaded at para 43 of the RFASOC; and
·paras 8(e) and 8(f) of the AHRC complaint refer to the incident where Mr Ford alleged that Mr Waldock and Mr Raffery performed unwelcome simulated anal and oral sex on Mr Varghese, pleaded at para 55 of the RFASOC.
This is not a case where:
·new respondents – not the subject of a terminated AHRC complaint – have been added to Court proceedings; or
·new facts not previously raised for consideration by the AHRC are alleged.
This is a case where the pleadings in this Court are more specific in respect of the same alleged conduct as was the subject of the terminated AHRC complaint, only now by reference to identification of persons involved. Paras 43, 49, 52, 55 and 73 of the RFASOC cover substantially the same ground in respect of witnessed conduct as paras 8(a), 8(c), 8(d), 8(e) and 8(f) of the AHRC complaint (cf Lehane J in Travers v New South Wales [2000] FCA 1565 at [10]). The facts pleaded in paras 43, 49, 52, 55 and 73 of the RFASOC bear the same legal character as claimed in the AHRC complaint.
Further, as Lehane J also observed in Travers:
8.… It may well be that the ambit of a complaint is to be ascertained, for the purpose of s 46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination.
Notwithstanding the absence of evidence to the following effect, I also consider it likely that, in the course of the conduct of the AHRC complaint, Mr Ford would have identified Mr Lucht, Mr Collett, Mr Varghese and Mr Levaai as persons involved in the conduct Mr Ford allegedly witnessed. To that extent, I consider it likely that the shape the AHRC complaint assumed by the time of the termination by the Commission included reference to those co-workers. That Mr Lucht, Mr Collett, Mr Varghese and Mr Levaai did not participate in or appear during the AHRC process is in my view irrelevant to the question whether the present application before the Court meets the requirements of s 46PO(3) of the AHRC Act.
I am satisfied that the Court has jurisdiction to entertain this aspect of Mr Ford’s complaint.
EVIDENTIARY ISSUES
In both written and oral submissions, the parties submitted that there were multiple evidentiary issues requiring the Court’s attention before the substantive issues in the case could be addressed.
First, the respondents objected to the admission of the following evidence (as set out in Agreed Issue 7):
(1)the last filed affidavits of Mr Ogg (sworn 13 June 2019), Mr Bhardwaj (sworn 14 June 2019) and Mr Ly (sworn 6 June 2019) which post-dated the respondents’ 1 March 2019 notice of objections, and to which the respondents objected in full;
(2)evidence identified in the respondents’ notice of objection filed on 1 March 2019, being a detailed document in the length of 29 pages which superseded an earlier notice of objection of 89 pages in length filed on 13 February 2019;
(3)evidence of complaints by Mr Ford to Mr Ogg, Mr Bhardwaj, Mr Ly and Ms Hanner, on the basis of hearsay;
(4)tendency and coincidence evidence; and
(5)the admissibility of evidence of Dr Byth.
Second, on 1 March 2019 the applicant filed his revised notice of objections to the evidence of the respondents, being a document in the length of 5 pages. The applicant also submitted that certain pleadings in the amended defence of the first, third, fourth and fifth respondents constituted deemed admissions.
It is appropriate to examine these issues separately.
Last filed affidavits of Mr Ogg, Mr Ly and Mr Bhardwaj
Filed affidavits were sworn by Mr Ogg on:
·18 May 2018;
·3 August 2018;
·16 October 2018; and
·13 June 2019.
Filed affidavits were sworn by Mr Ly on:
·19 May 2018;
·3 August 2018; and
·6 June 2019.
Filed affidavits were sworn by Mr Bhardwaj on:
·19 May 2018;
·3 August 2018; and
·14 June 2019.
The respondents objected to the last filed affidavits of Mr Ogg, Mr Ly and Mr Bhardwaj on the basis that that evidence did not comply with the Court’s Order of 11 June 2019 by exceeding the clear purpose of “particularising” the earlier misleading and prejudicial evidence from those witnesses. The respondents also contended that new allegations of fact and unlawful conduct were made by each witness, particularly Mr Ogg, which was an abuse of process. The respondents submitted that the Court should therefore reject the last filed affidavits of Mr Ogg, Mr Ly and Mr Bhardwaj.
Turning to my Order of 11 June 2019, it is clear that the applicant was given leave to file and serve additional affidavits of these witnesses, particularising the evidence in their earlier affidavits. I also note that the respondents were given leave to file and serve further affidavits responding to the further affidavits filed by the applicant.
I consider that there is merit in the submission of the respondents. The affidavits of Mr Ogg, Mr Ly and Mr Bhardwaj are a mixture of particularisation of earlier evidence, and (particularly in respect of Mr Ogg) new evidence. However, from the point of view of admissibility of this evidence (as distinct from the weight I will attribute to this evidence):
·to the extent that the affidavits of these witnesses filed after 11 June 2019 contained new evidence, insofar as I can ascertain, no issue in this respect was taken by the respondents in Court until the trial;
·the respondents had an opportunity to respond to the evidence in the last filed affidavits of these witnesses by filing their own evidence, pursuant to the Orders of 11 June 2019, however insofar as I can ascertain, they did not do so;
·the evidence in the last filed affidavits of Mr Ogg, Mr Ly and Mr Bhardwaj appears relevant to issues in the trial;
·the respondents had ample opportunity at the trial to test this evidence of these witnesses during cross-examination;
·the respondents were able to make submissions as to the weight the Court should attribute to the last filed affidavits of these witnesses; and
·the respondents were able to make submissions as to the credit of those witnesses in light of their last filed affidavits.
In my view the last filed affidavits of Mr Ogg, Mr Bhardwaj and Mr Ly should be admitted.
Respondents’ notice of objection to evidence
In their notice of objection to evidence filed on 1 March 2019, the respondents objected to evidence of:
·Mr Ly;
·Mr Bhardwaj;
·Mr Ogg;
·Ms Hanner;
·Mr Ford;
·Dr Byth; and
·Mr Barlow.
The evidence of Dr Byth and Mr Barlow is medical evidence, and I will deal with that evidence separately.
Some confusion arose in the course of the proceedings as to the parties’ approach to, and the Court’s consideration of, the admissibility of this evidence.
In the course of case management of the proceedings, I listed the proceedings for a case management hearing on 9 April 2019 in order to hear objections to evidence.
In relation to objections to evidence as a whole, however, at the case management hearing on 9 April 2019 I indicated to the parties my overall preference to admit evidence on which the parties sought to rely, in order for the Court to be presented with that which the parties perceived to be their best evidence. This approach was, in my view, consistent with the overarching purpose of the civil practice and procedure provisions (as set out in s 37M of the Federal Court of Australia Act 1976 (Cth)) in a complex matter involving sensitive and emotional matters of evidence, and the desirability of facilitating the just resolution of the dispute before the Court according to law as quickly, inexpensively and efficiently as possible. I was also conscious of the proposed duration of the proceedings and the prospect of significant costs which would be incurred by the parties, as well as Court time in hearing detailed and contested objections to evidence.
At the hearing on 9 April 2019 after I expressed my views, the matter was briefly adjourned and Counsel conferred. On resumption of Court, Counsel for the respondents made the following submission:
Your Honour, it has been used constructively. Your Honour, I can indicate in the circumstances, given your Honour’s indication, the respondent doesn’t press the objections brought in the filed objections to evidence document.
I can only understand that the document to which Counsel referred in this submission was the notice of objection filed on 1 March 2019, that the respondents did not seek to press their objections, and that the matter would proceed at trial with all evidence being admitted for consideration. In the circumstances, and with no apparent demur on the part of the parties, I then adjourned Court.
I note the applicant also filed a document, being “Applicant’s Notes on Objections to Evidence” of some 150 pages (including extensive annexures) on 9 April 2019. I understand that the applicant had anticipated relying on that document at the hearing of 9 April 2019.
On the first day of the trial, Counsel for the respondents again raised objections to evidence referable to their notice of objections filed on 1 March 2019. At the time, in querying this approach, I said as follows:
I also gave the parties the opportunity to return for further case management on 11 June. You might recall that. The parties – my Associates sent an email to the parties. The parties decided to come in for that case management day. We had a case management day. No further issues were raised in relation to objections to evidence, as I recall. Now, I really want to get on with this. If there are specific issues of importance that you want to raise, well, I am reluctant, given the fact that we’ve already been down this path, but I’m not prepared to have 30 pages of evidence – objections to evidence raised on day 1 of the trial. As a matter of case management, in my view, that horse has bolted.
I hear what you’re saying, Ms Reece. You can make whatever submissions you like about whether certain evidence should be given any weight by me or shouldn’t be allowed by me, but I would prefer you to perhaps do that after the trial. The reason is because some of this evidence may just simply fall away. I don’t know. I’m also thinking of the time you’re going to spend on this, and you may find that it’s more constructive later. But if you – please don’t put in – expect me to rule on evidence at this point if it’s 30 pages of evidence. I’ve already given – we’ve already been down this path and I’ve already told the parties my preferred approach to deal with the evidence in this case.
It is very difficult. They’re very – as the parties are aware, there are some quite difficult allegations being made on both sides. I would simply like to get on and hear the evidence and have that evidence tested properly. And I have no problem with having it properly tested in court….
(Transcript page 55 ll 1-24.)
Counsel for the applicant made no particular objection to this course of events. In the Statement of Agreed Issues for Determination the parties also agreed that the respondents’ notice of objections to evidence require determination.
In the circumstances, I consider the following approach to be appropriate:
·In light of the extensive and voluminous objections to evidence on the part of the respondents – to the extent practical, I will make general rulings addressing:
(a)reiterated objections made on the same basis, including hearsay, relevance, impermissible opinion, and unfairly prejudicial and misleading; and
(b)tendency evidence.
·In respect of objections to specific evidence – I will progressively make rulings on the admissibility of evidence on which the parties rely and which is relevant to the determination of this application.
Impermissible opinion
Section 76(1) of the Evidence Act 1995 (Cth) contains the opinion rule, namely that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. However, s 78 of the Evidence Act provides as follows:
78. Exception: lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
In Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, French CJ, Heydon and Bell JJ relevantly observed:
45.Function of common law rule. The common law permitted the reception of non-expert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences – either in lieu of or in addition to whatever evidence of specific matters of primary fact they could give about that event or condition. The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state, but a thorough search would uncover very many more. The problems which arise in examples falling into this category would have been reduced, though not completely solved, if, at the time of the observation, the observer had foreseen that one day he or she would be questioned by a police detective or a barrister, for then the observer might have made some conscious contemporaneous attempt to sort out the primacy facts so as to facilitate their future recollection and expression. But in many cases, to endeavour to describe the primary facts underlying the inference may be ineffective or misleading without stating the inference. The reason why it is very difficult for the observer is that it is almost impossible to separate the inferences from the primary facts on which they are based, and often very difficult to identify and recollect the primary facts themselves.
…
48.… Evidence about a place in which a person has fallen and about the injuries of that person is not within the category of cases where lay opinion evidence was admissible at common law and is admissible under s 78. The function of the law in relation to that category is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. Where the evidence is that a person appeared to be drunk or middle-aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness’s perception of the sobriety, age or emotional state being observed.
(Emphasis added, footnotes omitted.)
In the Fourth Ogg Affidavit, Mr Ogg relevantly deposed as follows:
·He had seen Mr Phillips pull his pants down and show his genitals in the locker room.
·On one occasion, Mr Phillips put his genitals in the face of Mr Varghese. Mr Phillips also did this to Mr Lucht and Mr Hannett.
·Mr Phillips would do this at the end of the shift. He would have his underwear on and then expose his genitals. Mr Phillips appeared to do this to make the men in the locker room laugh.
·He had witnessed Mr Rafferty and Mr Waldock pull their pants down and expose their underwear in the feather room. On each occasion, they were smirking, although Mr Ogg recalled some occasions when Mr Waldock did not laugh or smirk. Mr Ogg stated: “I cannot describe the expression on his [Mr Waldock’s] face but it was different”.
·He recalled noticing that other workers laughed at Mr Rafferty and Mr Waldock pulling their pants down.
During cross-examination, Mr Ogg gave the following evidence in relation to when Mr Phillips put his genitals near Mr Varghese’s face:
And I suggest to you that Wade Phillips never brought his genitals near to the faces of his co-workers who you’ve given evidence about today?---No. I have seen him do that.
When was it?---I can’t remember the date, but if I had to say a year by – if I went by year, say it would have, probably, happened after 2009.
Anything more specific than that?---I could maybe say “2012 to 2014”; may be in that time-frame.
So when do you say he brought his genitals close to Bijo Varghese’s face?---Yes.
You’re saying that happened somewhere between 2009 and 2014?---Yes; that’s - - -
All right?---That’s best I can give.
(Transcript p 462 ll 32-46.)
Mr Ly
In the First Ly Affidavit, Mr Ly relevantly deposed as follows:
·Mr Waldock, Mr Rafferty and Mr Mole had engaged in, among other things, such conduct as exposing their genitals to another worker.
·Mr Waldock, Mr Rafferty and Mr Mole had engaged in, among other things, such conduct as rubbing their genitals on another worker.
·He had witnessed Mr Rafferty and Mr Waldock, among other things, “rub their genitals on Richard”.
In the Third Ly Affidavit, Mr Ly relevantly deposed as follows:
·Mr Rafferty and Mr Waldock had rubbed their genitals on another worker on many occasions in the feather room, and at least once per week.
·Mr Ly also saw Mr Rafferty and Mr Waldock rub their genitals on workers near the drink fountains, when workers were drinking from the drink fountains, and in the locker room, when workers were getting changed.
·Mr Rafferty and Mr Waldock were wearing pants when they rubbed their genitals on other workers.
·Mr Ly also saw Mr Rafferty and Mr Waldock rub their genitals on each other.
·He had witnessed Mr Rafferty and Mr Waldock rub their genitals on Mr Ford on a few occasions, but he could not recall the dates.
·When Mr Waldock and Mr Rafferty rubbed their genitals on Mr Ford, they were wearing clothing.
During cross-examination, Mr Ly gave the following relevant evidence:
·He could not give a date for when Mr Rafferty, Mr Mole and Mr Waldock rubbed their genitals on another staff member.
·The conduct happened in the feather room and the hanging room.
·He disagreed that the conduct was not happening in 2015 and 2016.
·The conduct had happened to Mr Ford in the feather room, when Mr Ly was in the feather room towards the end of the shift, with many other people around.
(Transcript pp 478 ll 17-47; 480 ll 19-35.)
Evidence of the respondents
Mr Rafferty
Mr Rafferty, in his affidavit sworn 7 July 2018, deposed that:
·On his first day of work in the Red Area at Inghams in or around 2008, he went up to a worker called Ashley to introduce himself. Ashley kept looking at Mr Rafferty, but didn’t say anything. Mr Rafferty realised Ashley’s pants were slightly lowered with his hips forward and his penis hanging over his pants. Mr Rafferty was extremely shocked.
·Mr Rafferty had never exposed his genitals to anyone at Inghams.
·He had not encouraged Mr Collett (either together with Mr Waldock or acting alone) or any other employee to expose their genitals in front of Mr Ford or at any other time.
·He did not recall Mr Collett exposing his genitals in the feather room on any occasion.
During cross-examination, Mr Rafferty gave evidence that the incident that occurred on his first day was shocking and unexpected, and that he did not consider that it was “normal” (transcript p 516 ll 22-47).
During cross-examination, Mr Rafferty also gave evidence that he did not have a recollection of Mr Waldock encouraging Mr Collett to expose his genitals or of Mr Waldock exposing himself, stating that “Mr Waldock would never do anything like that” (transcript pp 584-585).
Mr Waldock
In his affidavit affirmed 5 July 2018, Mr Waldock relevantly deposed as follows:
·He had never pulled his pants down in the locker room to purposively expose his genitals to workers who were nearby. He had never said to anybody at the workplace “check out my balls”, before or after pulling his pants down. He would never show any part of his body like this as he was very body-conscious.
·He denied that he had ever seen or heard of Mr Collett pulling his own pants down and exposing himself to Mr Waldock, or to anyone at Inghams, at any time during Mr Waldock’s employment at Inghams. This incident did not happen.
·He had never pulled his pants down and exposed his buttocks as Mr Ford claimed, nor done so in the work place at any time. He would not show his body like this as he was very body conscious. If, for example, he had to take his shirt off, he would go into the shower block so that nobody could see him.
Mr Waldock was not cross-examined in relation to this evidence.
Mr Phillips
In his affidavit affirmed 6 July 2018, Mr Phillips relevantly deposed as follows:
·He had never pulled his pants down in the locker room to purposively expose his genitals to workers who were nearby.
·He had never said to anyone at the workplace to “check out [his] balls”, before or after pulling down his pants.
·He did “strip off” in the locker room because it was a changing room.
·It was common for workers to “strip off” in the locker room.
·The incident alleged by Mr Ford, where Mr Phillips rubbed his testicles on Mr Varghese’s face, did not happen. Mr Phillips would never do something like this.
·He was not sure who Mr Varghese was by name.
·He had not rubbed his testicles on any co-worker at any time.
During cross-examination, Mr Phillips gave the following relevant evidence:
·There may have been one or two instances when he took a shower where he left the door open, but generally he would not leave the door open.
·He did not recall engaging in dancing behaviour in the shower with another man. He could not see himself ever dancing in the shower.
·He did not recall engaging in behaviour in the shower with the door open so that “the boys” could have a laugh.
·He had not seen behaviour in the locker room where someone exposed their testicles and rubbed them on the head and face of other employees, nor had he engaged in such behaviour.
·The showers were isolated from the rest of the locker room, such that he doubted that he would have done something, or said something, to get a “bit of a laugh” when in the shower.
(Transcript pp 682-683.)
Mr Collett
In his affidavit affirmed 6 July 2018, Mr Collett gave the following relevant evidence:
·He strongly denied that he ever pulled his pants down to expose himself to Mr Ford or anybody at Inghams.
·This was not something he would have ever done, at work or otherwise.
·The allegation was offensive.
·The allegation that he would act so inappropriately, soon after being given a final warning (in May 2016 for smoking outside the chemical room), was unbelievable.
Mr Collett maintained his denial of the alleged conduct during cross-examination (transcript pp 824-825).
Mr Vargehese
In his affidavit affirmed 5 July 2018, Mr Varghese gave the following relevant evidence:
In response to paras 297 to 299 of the Ford Affidavit, Richard says that Wade Phillips exposing his genitals and slapped them on me in late July or early August 2016. I disagree that this ever happened. This kind of behaviour has never happened to me and I have never seen or heard any behaviour like that. If I did see anything like this, or if it happened to me, I would go straight this to my supervisor or you would go to HR. Also, although I know Wade Phillips, I cannot remember ever working on a shift with Wade as we do different jobs.
During cross-examination, Mr Varghese gave evidence that he did not see Mr Phillips that often, as they worked different jobs. Mr Varghese also gave evidence that he could not remember seeing Mr Phillips coming out of the showers without any towel covering Mr Phillips in 2015, and that, if he had, he would have reported that to the human resources department at Inghams (transcript p 997 ll 8-17).
Mr Mole
In his affidavit affirmed 5 July 2018, Mr Mole denied Mr Ly’s allegation that he had engaged in exposing his genitals to other workers.
Mr Hannett
During cross-examination, Mr Hannett gave the following relevant evidence:
Wade likes to make jokes, doesn’t he?---Well, most workers do.
Yes. Pull pranks?---Who?
Does Wade pull pranks?---Oh, not – not that I observed at all.
Have you seen him – you’ve been in the locker room before and after work?---I’m always – I was always the first one to work out of the red area, one of the last ones to leave.
Yes. And have you seen Wade, as a bit of a joke, pull out his penis and testicles and attract attention?---Only when they came out of the shower.
And he would attract attention to himself as a bit of a joke?---But he just walked out of the shower without a towel on.
Okay.
HER HONOUR: So what did you – what did you just say?---He walked out of the shower without a towel on.
Wade Phillips did?---Yes. When he had had a shower after work before they go home.
Right. Thank you.
MR REIDY: And that was something that you at least remember?---Yes.
Because he didn’t have a towel on?---That’s so.
Did you think that was inappropriate?---No. It was just a male locker room.
Okay. But something that sticks in your memory?---Well, lot of workers walked to have a shower without towels, so you sort of - - -
Well, which ones didn’t?---Well, I know Wade - I know Wade doing it, because he was always one of the last to leave work.
And did he, when he came out of the shower, have a – play pranks on people using his penis and testicles, for example, to put them near someone’s face while they were bending over?---I never witnessed anything like that.
You sure?---Sure.
(Transcript pp 914 ll 1-43.)
Other witnesses
Mr Okoro, Mr Dhanoa, Mr Levaai, Mr Flanders, Mr Rahiwi, Mr Lucht, Mr Johnson, Mr Chan and Ms Horne all made statements in late November 2016 or early December 2016, during the workplace investigation, that they had never seen, heard of, nor been the perpetrator of exposing their genitals to other workers.
Consideration
Whilst the evidence relevant to Agreed Issues 1(k), 1 (n) and 1(q) is broadly similar as referable to conduct, witnessed by Mr Ford, involving some form of alleged genital or buttocks exposure by a co-worker, I consider the distinctions between Issues 1(k), 1(n) and 1(q) warrant that the detail of each issue and associated claims in the RFASOC be examined separately.
Agreed Issue 1(k)
In relation to this issue, the applicant relevantly submitted:
·The conduct was unwelcome, and Mr Ford’s evidence in this respect has not been contradicted.
·Exposure of buttocks, a private area of the body normally clothed, is conduct of a sexual nature.
·The evidence of Mr Ford should be preferred to Mr Waldock, who was not a credible witness.
·The circumstantial evidence, the evidence of a culture or system and the tendency evidence support the drawing of an inference that Mr Waldock engaged in the conduct.
In relation to this issue, the respondents relevantly submitted:
·Mr Ford’s evidence was inconsistent. In particular, Mr Ford’s evidence was that there were no other people present at the time of the incident because production was still running, and only he and Mr Waldock were rostered in the feather room that day. However, para 37(f) of the RFASOC pleaded that other employees were working in the area.
·It was inconsistent with the objective state of affairs, such as the layout of the Red Area, as well as the applicant’s own narrative of events, for Mr Ly, Mr Ogg or Mr Bhardwaj to have witnessed the range and frequency of conduct stated in their later affidavit evidence.
In considering this issue, I make the following observations.
Despite para 37(f) of the RFASOC, Mr Ford’s evidence was that the relevant conduct happened when no other workers were around. The resolution of this issue is therefore substantially dependent on whether I prefer the evidence of Mr Ford, or the evidence of Mr Waldock.
On balance, I prefer the evidence of Mr Waldock in respect of Mr Ford’s allegation of this conduct, to evidence of Mr Ford. In particular, I find as follows:
·Notwithstanding Mr Ford’s evidence, as I have already observed in the course of this judgment, no plausible explanation has been given by Mr Ford for his continued association outside of working hours with Mr Waldock, in circumstances where Mr Ford alleged that Mr Waldock was harassing him in the distressing manner Mr Ford has alleged.
·Evidence of Mr Bhardwaj, Mr Ly and Mr Ogg did not corroborate Mr Ford’s allegation. Only Mr Ogg gave evidence of potentially similar conduct (being that Mr Rafferty and Mr Waldock allegedly pulled their pants down and exposed their underwear in the feather room).
·No other witness gave evidence that a worker at Inghams had exposed their buttocks.
·There is no credible evidence before the Court to support a finding of tendency on the part of Mr Waldock to expose his buttocks (or genitals) from which an inference concerning the alleged conduct in Agreed Issue 1(k) could be drawn. Evidence of Mr Bhardwaj, Mr Ly and Mr Ogg which they gave in respect of Mr Waldock was inconsistent. For example:
(a)Mr Bhardwaj gave evidence that Mr Waldock had pulled his pants down and exposed his genitals to workers saying “check out my balls” in the locker room;
(b)Mr Ly gave evidence of Mr Waldock and Mr Rafferty allegedly exposing their genitals to other workers in the feather room; and
(c)Mr Ogg only gave evidence of underwear exposure by Mr Rafferty and Mr Waldock in the feather room.
In light of the lack of consistency as to the type and place of the conduct, the lack of particularisation of dates the conduct was engaged in, and my earlier credit findings in respect of these witnesses, I give no weight to evidence of Mr Bhardwaj, Mr Ly and Mr Ogg in respect of Mr Waldock’s alleged conduct.
·There is no credible evidence before the Court of a culture of such buttock or genital exposure conduct at Inghams, including a culture endorsed by management. Mr Rafferty gave evidence that a co-worker had exposed his genitals to Mr Rafferty, once, many years before. A single historical incident does not support a finding of a culture at Inghams where Mr Waldock would be comfortable exposing his buttocks to Mr Ford.
On balance, the weight of credible evidence does not support Mr Ford’s claims in respect of Agreed Issue 1(k). I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act.
Agreed Issue 1(n)
In relation to this issue, the applicant relevantly submitted:
·Mr Collett was a current employee of Inghams, and so was unlikely to want to jeopardise his position (already having had a disciplinary encounter in 2016) by admitting to any of the conduct alleged.
·Mr Collett had conversations with Mr Waldock about the case and what was going to be said in response to the allegations.
·Mr Collett believed in a culture that employees should not “narc”. “As a matter of honour”, Mr Collett would not be inclined to “dob on” his current work colleague.
·Mr Rafferty’s response to the alleged incident was that he had no recollection of it.
·Mr Ford’s evidence should be preferred to the evidence of Mr Collett, Mr Rafferty and Mr Waldock.
·The circumstantial evidence, the evidence of a culture or system and the tendency evidence support the drawing of an inference that Mr Collett, Mr Rafferty and Mr Waldock engaged in the relevant behaviour.
The respondents made written submissions in relation to whether this conduct would fall within the meaning of “sexual harassment” in the SD Act. The respondents also submitted that the alleged incident did not form part of the complaint Mr Ford made to the AHRC.
I have found that Mr Ford’s pleaded case is not broader than his AHRC complaint. However, I do not consider that Mr Ford has established this aspect of his claim. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, for the following reasons.
First, other than Mr Ford, no witness gave evidence of Mr Collett ever engaging in exposing his genitals to other workers, such that a tendency on the part of Mr Collett to engage in such conduct could be inferred.
Second, while Mr Bhardwaj, Mr Ogg and Mr Ly gave varying evidence concerning four co-workers out of the entire Inghams’ workforce (namely Mr Phillips, Mr Waldock, Mr Rafferty and Mr Mole) allegedly engaging in conduct involving genital exposure, this did not mean the Court should readily find either that Mr Collett had acted as Mr Ford alleged, or that there was a culture at Inghams where Mr Collett would expose his genitals as Mr Ford alleged.
Third, Mr Collett, Mr Waldock and Mr Rafferty denied that the conduct alleged by Mr Ford occurred. The applicant appeared to accept that Mr Collett valued his job at Inghams. I note in particular Mr Collett’s evidence that he would not act in the manner alleged by Mr Ford to jeopardise his employment so soon after being given a final warning. In my view this evidence of Mr Collett is plausible.
Fourth, Mr Ford’s evidence was that, from the position he was standing on the factory floor, he did not actually see Mr Collett’s genitals when Mr Collett allegedly exposed himself to Mr Rafferty and Mr Waldock. It follows that Mr Ford simply inferred that Mr Collett had done so.
Fifth, notwithstanding the applicant’s submission to this effect, and as I have already discussed, no credible basis has been advanced from which I can infer that there was collusion between Mr Collett and Mr Waldock in relation to Mr Collett’s evidence concerning this issue.
On balance, the weight of credible evidence does not support Mr Ford’s claims in respect of Agreed Issue 1(n).
Agreed Issue 1(q)
In summary the applicant relevantly submitted:
·Mr Ogg witnessed the incident.
·It was clear that Mr Ogg was struck by Mr Phillips’ exhibitionism in the locker room and his highly unusual antics, not only in relation to Mr Varghese, but also Mr Lucht as well as the shower incident, and that it left an impression. These are events which are very likely to stick in the mind because they are so out of the ordinary, dumbfounding and lewd.
·Mr Varghese became very agitated before he was asked any questions directly related to the incident. In response to a straightforward question about whether he saw Mr Phillips come out of the shower in the locker room without a towel, Mr Varghese’s instant response was “I can’t remember”, and then he moved into a panicked and nonsensical answer that if it happened he would report it to his supervisor or to human resources.
·Mr Varghese was very comfortable with his life “in which this job [gave] him peace”. He did not want to jeopardise his job.
·Mr Vargehese’s evidence should be treated with caution. He presented as an evasive witness, anticipating questions and trying to and answer them before they were asked. He became particularly agitated every time the matter of Mr Phillips came up and did his best to disavow knowledge of Mr Phillips (although he clearly knew him) and any connection with Mr Phillips in the locker room.
·Mr Varghese’s evidence that he did not know Mr Phillips was inconsistent with his evidence later during cross-examination, when he said that he was able to recognise Mr Phillips in the feather room.
·Interestingly, when Mr Hannett was asked whether Mr Phillips would pull out his penis and testicles to attract attention, he said “only when he came out of the shower”. The answers were a little odd in the circumstances.
·The evidence of Mr Ford and Mr Ogg should be accepted in preference to the evidence of Mr Varghese.
·Mr Phillips was not a witness of credit.
·The court can be comfortably satisfied that the incident did occur based on the evidence of Mr Ford and Mr Ogg.
·The evidence of a culture or system, the circumstantial evidence of the variety of sexualised conduct in this workplace and the tendency evidence allow for an inference to be drawn that it was very likely, within the context of this workplace, that Mr Phillips engaged in the alleged conduct.
In relation to this issue, the respondents submitted:
·The alleged incident did not form part of the complaint Mr Ford made to the AHRC.
·Mr Ford could not confirm who was present when the incident occurred (with the exception of Mr Ogg).
·Mr Ogg corroborated Mr Ford’s version of events for the first time in the Fourth Ogg Affidavit.
·Mr Vargehese denied that the alleged conduct occurred.
I have found that Mr Ford’s pleaded case is not broader than his AHRC complaint. However, I do not consider that Mr Ford has established this aspect of his claim. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, for the following reasons.
First, Mr Varghese strongly denied that the incident alleged by Mr Ford ever occurred. I have been given no sound reason to doubt the veracity of Mr Varghese’s denial. The applicant’s submissions concerning Mr Varghese’s “unease” in giving evidence during the hearing in respect of this issue are not persuasive. Rather, in my view any unease on the part of Mr Varghese can be simply explained by Mr Varghese’s embarrassment at being required, in the formal environment of a Court, to discuss such allegations concerning himself – correctly described by the applicant as “dumbfounding and lewd” – when Mr Varghese insisted that the allegations were untrue. I find any “unease” of Mr Varghese in such circumstances perfectly understandable. Further, as I have already observed in relation to witnesses who continued to be employed by Inghams (such as Mr Muhic), no credible evidence has been advanced to suggest that Mr Varghese was fearful of losing his job if he gave evidence in support of Mr Ford’s case.
Second, it seems highly implausible that, if Mr Varghese were bent over and his face came into contact with Mr Phillips genitals, Mr Varghese would remain in that position and allow Mr Phillips to “slap his testicles backwards and forwards over Bijo’s face and head for approximately 10 seconds”. There is no evidence that Mr Vargehese was being restrained in that bent over position, for that extraordinary length of time. It is far more likely that, if the conduct had occurred, Mr Varghese would have immediately stood up or moved away. Mr Ford’s claim and related evidence is simply not credible.
Third, Mr Ford’s evidence in relation to whether he told other co-workers about the conduct in Agreed Issue 1(q) was inconsistent. In particular, his affidavit evidence was that he could not talk to other employees about the conduct. However during cross-examination, Mr Ford gave the following, confused, evidence in relation to whether he spoke to other employees about the alleged conduct:
All right. I take you to paragraph 300 - - -?---Yes.
- - - of your affidavit. You say, about halfway down – so that’s the – one, two, three – the fourth line – if you go over to a sentence beginning, “I could not talk about it”?---Yes.
In fairness, I will just read you a little bit more of that paragraph to explain – I suppose, to put it in context. You say:
I was shocked by what I saw, even though I had seen and experienced a number of incidents of a shocking nature up to that point. I was shocked each time something happened to me or I witnessed this type of conduct against others. I found the conduct to Phillips disgusting and revolting. I could not talk about it to other employees.
?---Yes.
So that’s the case, isn’t it? You didn’t tell anyone. You didn’t talk to anyone about any of this happening in the factory?---Untrue.
Well, do you agree that you say in your own affidavit:
I could not talk about it to other employees.
?---Yes.
All right.
HER HONOUR: Could I just ask – what do you mean by that, Mr Ford?---By - - -
You said – there’s an issue about the extent to which you talked to other employees about it?---Yes. I spoke to a few of my close – close friends, but kept it pretty quiet – just spoke to a couple of real close people about what was going on and how they dealt with it, your Honour.
Thank you.
MS REECE: Mr Ford, have you ever, in your evidence, said you talked to your coworkers about what was happening to you at Inghams?---I’m unsure.
You said in your affidavit:
I couldn’t talk to anyone about what was happening.
?---I’m unsure.
You didn’t say, “I couldn’t talk about it to most people, but just to a few”?---I’m unsure.
And I suggest to you the reason why you’re saying this now is because you know there are witnesses called in your case who say that you had discussions with them?---I’m unsure.
(Transcript pp 294-295.)
Fourth, although Mr Ford relied on evidence of Mr Ogg, I note that Mr Ogg did not give evidence of the alleged incident involving Mr Phillips and Mr Varghese until the Fourth Ogg Affidavit. During cross-examination, Mr Ogg gave the following relevant evidence in relation to discussions he had with Mr Ford:
So you’ve spoken to him since you gave your first two affidavits in this matter, one of which was sworn on 18 May and one of which was sworn on 3 August 2018?---Yes.
Do you remember what you talked about?---We talked about things that happened to him at Inghams’, about this going to court maybe and – yes.
So did he tell you some things about what had happened to him at Inghams’?---Yes.
Things that he had seen?---Yes; we just talked about what had happened and how it wasn’t good and - - -
Where were you when you were having that discussion?---My place.
So he came over to your house to discuss – and you discussed this case when he was there?---Yes.
Do you remember when that was?---Several months ago.
Did Richard tell you about – did he tell you something about seeing Bijo Varghese and Wade Phillips in the locker room?---Yes; he has told me about that.
Okay. And did he tell you about that after he – after you finished working at Inghams’?---Yes.
Okay. Take you to paragraph 8 of your fourth affidavit, Mr Ogg, which is the one dated 13 June 2019?---Yes. I have that one.
All right. Do you see you’ve written this or you’ve stated the following:
I have seen Wade pull his pants down and show his genitals. I’ve seen Wade do this in the locker room on one occasion, when he put his genitals close to the face of another employee, Bijo.
?---What page is that? Sorry.
So it’s page 3 of your 14 June – sorry – 13 June affidavit?---Okay.
So you see that affidavit?---Yes; yes.
Page 3, paragraph 8. It’s just the second paragraph from the top?---Yes. I see it. will let you read it again?---Okay. Yes. I’ve read that.
Mr Ogg, is that something that you actually remembered, or is it something that, Richard told you, he had seen?---No, I do remember that.
Well, I put it to you - - -?---Yes.
That the first time you mentioned that incident is in your 13 June affidavit that I’ve just taken you to?---Okay.
Do you accept you hadn’t mentioned it previously in the affidavits you’ve sworn in this matter?---Yes. I’m not sure why I never mentioned it earlier, but there was a lot of thing I needed to remember; it happened a long time ago, and that’s all I can say really.
(Transcript p 444-445.)
I have already found that the evidence in the Fourth Ogg Affidavit was likely contaminated by his discussions with Mr Ford. This finding is particularly applicable to Mr Ogg’s evidence in relation to this issue, as Mr Ogg specifically stated at the hearing that Mr Ford had told him about the alleged incident prior to Mr Ogg giving that affidavit.
I also note that Mr Ogg gave evidence that he had seen Mr Phillips expose his testicles in the faces of both Mr Lucht and Mr Hannett at Inghams. Mr Lucht gave a statement during the workplace investigation to the effect that he had never seen anyone expose their genitals to other workers at Inghams. Mr Hannett gave evidence that he had never witnessed Mr Phillips “play pranks on people using his penis and testicles, for example, to put them near someone’s face while they were bending over” (transcript p 914 ll 39-41). In my view, having observed both Mr Lucht and Mr Hannett during the hearing, I consider it extremely unlikely that either of them would tolerate such conduct as a worker exposing his testicles in their faces, as deposed by Mr Ogg.
I give Mr Ogg’s evidence in relation to this issue no weight.
Fifth, I note that Mr Ly did not give evidence that Mr Phillips or anyone else engaged in this or similar conduct. Mr Ly gave evidence that Mr Ford was subjected to “genital rubbing” conduct by Mr Waldock and Mr Rafferty, with many other people around. Mr Ly was the only witness to give evidence of this nature. In my view this evidence is not relevant to Agreed Issue 1(q), which involves dissimilar conduct, and different people allegedly involved.
Finally, other than Mr Bhardwaj and Mr Ogg, no witness gave evidence of Mr Phillips ever engaging in deliberately exposing his genitals, such that a tendency on the part of Mr Phillips to engage in the conduct alleged by Mr Ford could be inferred. To the extent that, after working all day in a factory, Mr Phillips may have taken a shower in a men’s locker room and then walked unclothed from the shower to his clothes to get dressed, does not in my view suggest a tendency on Mr Phillips’ part to engage in the conduct alleged by Mr Ford.
Further, for reasons I have already given, I am not satisfied that there was a culture at Inghams where Mr Phillips would expose his genitals in the face of another worker, as Mr Ford alleged.
On balance, the weight of credible evidence does not support Mr Ford’s claims in respect of Agreed Issue 1(q).
CONCLUSION
I have examined, in detail, and carefully, the evidence before the Court.
To the extent that I am persuaded that events alleged by Mr Ford did occur, I am not satisfied that they involved conduct of a sexual nature within the meaning of s 28A of the SD Act, or otherwise constituted sexual harassment within the meaning of s 28A of the SD Act.
Otherwise, I am not satisfied that the conduct alleged by Mr Ford has been substantiated. I will hear the parties in respect of costs.
In circumstances where I have found that the applicant has not established that any conduct constituting sexual harassment within the meaning of s 28A of the SD Act occurred, there is no need to give consideration to the appropriate remedy to be awarded, or to consider questions of vicarious liability on the part of the first respondent.
I certify that the preceding one thousand two hundrend and two (1202) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. Associate:
Dated: 11 December 2020
SCHEDULE OF PARTIES
QUD 349 of 2017 Respondents
Fourth Respondent:
WADE PHILLIPS
Fifth Respondent:
GEORGE MOLE
3
13
8