Ho v Regulator Australia Pty Ltd
[2004] FMCA 62
•12 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HO v REGULATOR AUSTRALIA PTY LTD & ANOR | [2004] FMCA 62 |
| HUMAN RIGHTS – Sex discrimination in employment – allegations of discrimination on the basis of pregnancy, gender, sexual harassment and victimisation – allegations denied – credibility of witnesses– competing psychiatric evidence about the applicant – applicant suffering from a psychiatric disorder although the nature of that disorder the subject of competing expert opinion – impact of the applicant’s condition upon her evidence considered – no sexual harassment or victimisation but applicant discriminated against on the basis of her sex and pregnancy. |
Crimes Act 1900 (NSW), ss.61, 562C
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.5, 7, 7B, 14, 28A, 28B, 94, 106
Aldridge v Booth & Ors (1986) EOC 92-177
Aleksovski v AAA Pty Ltd [2002FMCA 81
Beamish v Zheng [2004] FMCA 60
Bradshaw v McEwans Pty Ltd (1951), unreported
Briginshaw v Briginshaw (1938) 60 CLR 336
Cooke v Paluen Holdings [2001] FMCA 91
Erbs v Overseas Corporation Pty Ltd (1986) EOC 92-181
Gilroy v Angelov [2000] FCA 1775
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Lawrence v Clark (1993) EOC 92-539
McAllister v SEQ Aboriginal Corporation & Anor [2002] FMCA 109
Rohan v Thomas (1996) EOC 92-7784
Shiels v James & Lipman Pty Ltd [2000] FMCA 2
Tadawan v State of South Australia [2001] FMCA 25
Tenuyl v Delaney & Anor (1996) EOC 92-836
TNT Management Pty Ltd v Brooks (1979) 23 ALR 345
| Applicant: | MARIA HO |
| First Respondent: Second Respondent: | REGULATOR AUSTRALIA PTY LTD NEIL KENNY |
| File No: | SZ1388 of 2002 |
| Delivered on: | 12 May 2004 |
| Delivered at: | Sydney |
| Hearing dates: Date last submissions received: | 1 – 4 September 2003, 9 February 2004 27 April 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Ms E Brus |
| Solicitors for the Applicant: | Dooley & Associates |
| Counsel for the Respondent: | Ms L Rowan |
| Solicitors for the Respondent: | Clark McNamara Lawyers |
ORDERS
The Court declares that the first respondent, through the agency of Mrs Joanne Kenny, discriminated against the applicant in breach of s.5(1)(a) of the Sex Discrimination Act 1984 (Cth), by requesting the applicant to change the towels in the men’s washroom at the premises of the first respondent.
The Court declares that the first and second respondents discriminated against the applicant in breach of s.7(1)(a) of the Sex Discrimination Act 1984 (Cth) by subjecting the applicant to a meeting about her maternity leave application on 25 February 2002.
The first and second respondents shall pay $1,000 in general damages to the applicant, inclusive of interest up to judgment.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1388 of 2002
| MARIA HO |
Applicant
And
| REGULATOR AUSTRALIA PTY LTD |
First Respondent
NEIL KENNY
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant is a former employee of the first respondent. The second respondent is the managing director of the first respondent and the former supervisor of the applicant. The application is brought under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) alleging unlawful discrimination contrary to the Sex Discrimination Act 1984 (Cth) (“the SDA”). The application asserts that Mrs Ho is the victim of sex discrimination on the basis of pregnancy, sex discrimination on the basis of gender, sexual harassment and victimisation contrary to ss.5, 7, 7B, 14, 28A, 28B, 94 and 106 of the SDA.
The applicant seeks an apology, compensation and an undertaking that Mr Kenny will attend an anti-discrimination course. The applicant’s allegations are denied by both respondents.
Two preliminary issues of jurisdiction were dealt with by me at the outset of the trial of this matter. The first was whether this Court has jurisdiction, given that, prior to instituting proceedings in the Court on 3 October 2002, Mrs Ho instituted proceedings for unfair dismissal on 27 March 2002 in the New South Wales Industrial Relations Commission and made a workers’ compensation claim with GIO Insurance on 5 March 2002. I ruled that neither of these actions constituted the institution of a proceeding or any other action in relation to a human rights matter. Both arose out of an alleged assault on Mrs Ho by Mr Kenny on or about 7 March 2002. The proceedings in the New South Wales Industrial Relations Commission related to a claim of unfair dismissal arising out of workplace harassment, but not sexual harassment. The claim for workers’ compensation had the same factual foundation. While there are some common facts, there was no claim of sex discrimination or harassment in the workers’ compensation claim or the Industrial Relations Commission proceedings (which were discontinued without a decision). Accordingly, I ruled that s.11(4) of the SDA did not apply.
The other issue was whether the complaint made by the applicant to HREOC was the same complaint asserted in the proceedings in this Court. Section 46PO(3) requires that the unlawful discrimination alleged in the application must be the same as (or the same in substance) as the unlawful discrimination that was the subject of the complaint terminated by HREOC. In this case, the complaint made originally by Mrs Ho to HREOC was a complaint of sex discrimination and pregnancy discrimination. The complaint purportedly terminated by the President of HREOC included a further claim of sexual harassment. While it is not clear from the material before me, I infer that at some stage HREOC permitted Mrs Ho’s claim to be amended. The President certainly purported to deal with all three elements in terminating the complaint. It is also clear that, subsequently to Mrs Ho completing her complaint form to HREOC, she wrote a letter detailing her allegations of sexual harassment. I ruled that the complaint terminated by HREOC included a complaint of sexual harassment and that the unlawful discrimination alleged in these proceedings is the same as the unlawful discrimination that was the subject of the terminated complaint.
Mrs Ho was employed between 30 October 2000 and 7 March 2002 as an accounts clerk. She had daily interaction with Mr Kenny in the course of her employment. She asserts offensive behaviour towards her by Mr Kenny commencing in early 2001. She alleges that on several occasions Mr Kenny made sexual suggestions to her, which she rejected.
Mrs Ho alleges that, after she notified the second respondent on 19 February 2002 that she was pregnant and would need maternity leave Mr Kenny and his wife started making objectionable demands on her in the course of employment and Mr Kenny began finding fault with her work. Mrs Ho claims that the situation came to a head on 7 March 2002 when she had a confrontation with Mr Kenny over her failure to park in a car parking space allocated to the second respondent in the building occupied by the second respondent. Mrs Ho alleges that Mr Kenny physically assaulted her and threatened to kill her. She complained to the police about the assault. Subsequently, she received a letter from the second respondent stating that she had been deemed to have resigned from her employment due to her behaviour.
Mrs Ho has been undergoing psychiatric treatment following this incident. The complaint to HREOC was terminated on the basis that it could not be resolved by conciliation.
The evidence
The applicant relies upon her own affidavits filed on 3 October 2002 and 31 July 2003, an affidavit by Robert Hemms filed on 31 July 2003 and an affidavit by Thomas Tham Dui Luong also filed on 31 July 2003.
In her first affidavit Mrs Ho deposes that an invitation was made by Mr Kenny for her to ride with him in his Jaguar motor vehicle on 3 November 2000. She deposes that she declined the invitation and spoke to another employee, Mr Robert Eddington, about it afterwards. She deposes that Mr Eddington arranged to escort her off the premises at the end of the working day.
Mrs Ho deposes that on 27 February 2001 Mr Kenny asked her to accompany him and his wife to lunch the following day. She deposes that when they got to the restaurant Mr Kenny’s wife was not there and Mrs Ho felt uncomfortable. Mrs Ho deposes that Mr Kenny said at this time that he was in love with her. She was upset and trembling and thought about catching a taxi from the restaurant but had no money so she returned to work with Mr Kenny. She deposes that back at the office Mr Kenny came into her office and asked her to take her clothes off so that he could give her a full body massage. Mr Kenny allegedly said:
Take off your clothes and I will give you a full body massage. I will lock the door and no one will be able to come in.
Mrs Ho deposes that she told Mr Kenny to give his wife a massage not her. She says that she told Mr Robert Eddington about this incident.
Mrs Ho deposes that other sexual remarks were made to her by Mr Kenny over succeeding weeks but that, after she threatened to resign, he promised not to continue his conduct. However, in May 2001 Mrs Ho deposes that Mr Kenny asked her to go with him to the St George Bank in Phillip Street, Parramatta and that, after they had left the bank, he asked her to go with him to the Parkroyal Hotel so that they could “make love”. Mrs Ho deposes that she also told Mr Robert Eddington about this incident. She deposes that while she was discussing this incident with Mr Eddington, Mr Kenny walked in on them and asked:
What are you two doing?
She deposes that Mr Eddington said words to the effect:
We’re having a problem with a purchase order that we are trying to sort out.
Mrs Ho says that she went back to her office in a very upset state. She decided to phone Mr Nick Denman, a fellow employee of the company, and asked him if he could come up to her office. She deposes that she also told him what happened and asked if she should contact Mrs Kenny and tell her. She deposes that Mr Denman left that decision up to her but warned her that if she did so it may break up the Kenny family. She deposes that she threatened to resign and Mr Denman suggested that she stay a few more weeks to see if the harassment stopped.
Mrs Ho deposes that during the second week of November 2001 Mr Kenny entered her office and invited her to go to Queensland with him for car races at which his car would be racing. She deposes that she said that Mr Kenny should ask his wife and that Mr Kenny replied:
I would rather go alone than ask my wife along. I have really strong feelings for you and my heart is telling me that one day I will get you.
Mrs Ho deposes that during her employment she witnessed unprofessional and inappropriate sexual discussions between staff members and that staff members freely accessed pornographic material on the internet. She deposes that on “many occasions” she witnessed staff members watching pornographic videos and photos on their computers. She deposes that much of this was “condoned and encouraged” by Mr Kenny. She deposes that some staff also had sexual intercourse on the first respondent’s premises. She deposes that both Mr Kenny and herself, on separate occasions, had caught employees having sex on the premises.
Mrs Ho deposes that when she discovered that she was pregnant, she sought information from the New South Wales Department of Industrial Relations in order to find out her entitlements. She gave Mr Kenny a letter on 19 February 2002 which advised him of the pregnancy. She deposes that on the same day Mr Kenny discussed her pregnancy with her and had a further discussion with her on 20 February 2002. Mr Kenny wanted to know when Mrs Ho would be taking maternity leave and how much leave she wanted. She asked for maternity leave commencing on 17 June 2002 and ending on 14 September 2002. She deposes that Mr Kenny then said words to the effect:
I don’t want you to come back after three months maternity leave and I don’t want you to work for the company during your pregnancy.
Mrs Ho deposes that Mr Kenny’s treatment of her deteriorated from 19 February 2002 onwards. She deposes that Mr Kenny would refuse to talk to her, threw a letter at her and raised his voice to her. She became fearful of him and avoided him as much as she could. She deposes that Mr Kenny began accusing her of making mistakes in sending out cheques inappropriately. She was given no warnings or criticisms prior to 19 February 2002. She deposes that after 19 February 2002 Mr Kenny and Mrs Kenny required her to change the towels in the men’s bathroom, which embarrassed her. She deposes that Mrs Kenny, on 21 February 2002, on being informed by Mrs Ho of her pregnancy said:
No way, I am not accepting this. You are pregnant and that is your problem. I am not going to let you take three months off.
Mrs Ho deposes that on 25 February 2002 at a meeting with Mr Kenny and Mr Barry Robinson (sales manager for the first respondent), Mr Kenny said that he was going to get a temporary employee in. Mr Kenny said that he was not happy with Mrs Ho’s attitude. Mrs Ho said that she had only walked away from Mr Kenny when he made sexual remarks to her. Mrs Ho deposes that at this point Mr Kenny raised his voice and said words to the effect:
I am terminating your employment, effective immediately.
Mrs Ho deposes that she asked for a letter of termination with reasons. Mrs Ho deposes that Mr Robinson stated:
The reason Mr Kenny will not accept your maternity leave is that Mr Kenny wants you to stay home and look after your baby.
She deposes that after the meeting she again requested a letter confirming her maternity leave and that Mr Kenny again refused to do so.
Mrs Ho deposes that the following day Mr Kenny asked her to attend a further meeting and that at that meeting Mrs Ho again stated that she wanted to take three months maternity leave. Once again, after the meeting, Mrs Ho asked Mr Kenny for a letter confirming that he had granted maternity leave. She deposes that she got papers from the NSW Industrial Relations Department from her car at lunch time and asked Mr Denman to witness a letter she had written confirming that she had given these papers to Mr Kenny. Mr Denman did so. She deposes that following an appointment with her doctor on 28 February 2002 she obtained a medical certificate confirming her pregnancy, that she attempted to give to Mr Kenny with a letter confirming the period of maternity leave she wished to take, but that Mr Kenny refused to accept the letter from her.
Mrs Ho deposes that on 6 March 2002 she consulted Mr Bob Hemms, who worked for Fire Pro Centrebuild Pty Limited, which occupied the premises next door to the second respondent. She told Mr Hemms of her employment problems. He advised her to speak with the appropriate government agencies and offered to assist if that were needed. Mrs Ho deposes that on 7 March 2002 Mr Kenny confronted her about where she had parked her car. She deposes that Mr Kenny told her that she could not park in any car space except one allocated to the second respondent. She deposes that he pressed his finger on her forehead between her eyes very hard and yelled at her. She deposes that she told Mr Kenny that she had been told that she could park her car elsewhere and that she wished to do so because her car had been damaged. She deposes that Mr Kenny said:
I don’t care what anybody else has said, I am the owner of this company and you will have to listen to me. I am going to note your mistake in writing and I am going to kick you out of this company.
Mrs Ho deposes that she then went to move her car and that the altercation between them continued. She deposes that Mr Kenny said:
I am going to kill you. I am going to kill you if you still work here.
Mrs Ho deposes that she returned to her office very afraid and (after several attempts) called a Ms Woodland (an officer of the New South Wales Department of Industrial Relations) who advised her to contact the police immediately if she feared for her safety. She arranged for Ms Woodland to remain on the line while she contacted the police on another telephone. The police arranged to attend the premises and investigate. The police arrived at approximately 9.25am. The police took Mrs Ho outside and Mr Hemms arrived at that time. Mrs Ho went to the Ermington police station where she made a statement. Mrs Ho deposes that she suffered physical injuries to her upper chest and was very distressed by the incident and that her doctor issued her with a Work Cover certificate and referred her to a psychologist.
Mrs Ho deposes that on the morning of 8 March 2002 her husband rang the second respondent and told Mr Kenny that Mrs Ho would not be attending work that day as she had a Work Cover certificate for her absence and would be unable to return to work until the police investigation was resolved. Later, on 8 March 2002 she received a letter from the second respondent which she treated as a termination letter. She deposes that she returned work items to the second respondent and did not attend work again. Since the termination of her employment she has been attending weekly and sometimes twice weekly consultation with Dr Luong.
In her second affidavit filed on 31 July 2003 Mrs Ho responds to the affidavits of Mr Kenny, Mr Robinson, Mr Denman and Mrs Kenny and disputes the assertions in those affidavits inconsistent with her own allegations.
Under cross-examination Mrs Ho resisted attacks upon her credibility. She admitted that in her workers’ compensation claim she asserted workplace harassment between 19 February 2002 and 7 March 2002 but did not make any claim in relation to anything that occurred prior to 19 February 2002. She made no mention of sexual harassment in that claim. Mrs Ho asserted that she was initially reluctant to refer to the incidents of sexual harassment but eventually overcame her reluctance. Mrs Ho stated that the restaurant she and Mr Kenny attended on 28 February 2002 was Barnaby’s Restaurant in Phillip Street, near the St George Bank premises. Mrs Ho denied suggestions that a conversations with other employees at Regulator Australia were along the lines deposed in affidavits relied upon by the respondents. She denied that her attitude to her work changed after she became pregnant and denied that she had reported problems at home in her relationship with her husband. She confirmed that she had sought maternity leave between 17 June 2002 and 19 September 2002. She asserted that if the respondents’ deponents disputed her account of conversations in the workplace they were lying. She admitted that in her conversations with Mr Hemms she did not tell him of the alleged sexual harassment. She denied calling Mr Kenny an “arsehole prick”. She stated that she did not know what those words mean.
Mrs Ho stated that when she complained to the police on 7 March 2002 they took a statement from her and said that they would investigate her complaint but they did not suggest that she consider applying for and apprehended violence order. She confirmed that her injuries were examined on that day but that her injuries did not show up on photographs.
Mrs Ho was asked about her role in preparing references for her husband. She stated that these had been prepared in connection with job applications made by her husband and she conceded that she had described herself on one referee report as “Miss”. She prefers to be called “Mrs”. She also conceded that in the referee report she gave no indication that she was the wife of her husband who was the job applicant. She also conceded that she had described herself as “supervisor” in the referee report, even though she had no supervisory responsibilities with the first respondent. Mrs Ho also conceded that she had described herself as an accounts manager in an application for an American Express card even though the correct title for her job was accounts clerk. She also conceded that she had been addressed as the secretary to the managing director in a letter from the Salvation Army.
In re-examination Mrs Ho stated that she had also described herself as “Mrs” in a resume prepared by her husband and explained that she had described herself as a supervisor because she had assisted her brother in relation to the work of a trucking firm operated by him and he had described her as “supervisor”. She used the phone number for the first respondent for convenience. She could not remember the name of her brother’s firm. She had not named the company on the resume.
Ms Rowan suggested to Mrs Ho that the restaurant she had attended with Mr Kenny may have been the La Bella Vista Restaurant. Mrs Ho disputed this. She confirmed in cross-examination that she had believed there had been five incidents of sexual harassment by Mr Kenny. These were the invitation to go in his car, his conduct at lunch at the restaurant, his proposal later the same day that he give Mrs Ho a full body massage, his invitation to Mrs Ho to go to the Parkroyal Hotel with him and his invitation to go to Queensland with him. In re-examination Mrs Ho also referred to incidents of Mr Kenny touching her hair and body.
In response to questions from me, Mrs Ho said that she was still seeing Dr Luong every four weeks. She is taking a range of medication, including Serapax, Deptran, Inderal, Panamax and another drug which she could not remember, to help her relax.
Mr Robert Hemms
Mr Hemms deposes that he met Mrs Ho through her visits to his office which is next door to the office of the second respondent. He deposes that he became aware of Mrs Ho’s employment problems on 6 March 2002, the day before the alleged incident involving the police. He deposes that on that day Mrs Ho approached him in the car park and asked to speak to him about “some problems I have been having with my manager at work”. He deposes that Mrs Ho reported to him that she had been subjected to verbal abuse and aggressive behaviour by her manager, that she had been subjected to accusations of being incompetent by her manager, that she was asked to clean and maintain a toilet, that she was ignored by her manager and that her manager had refused her request for maternity leave without any reason. At that time Mr Hemms did not know who the “manager” was who Mrs Ho was referring to. He deposes that he advised Mrs Ho to seek recourse through the appropriate government agencies.
Mr Hemms deposes that on the following day on his way to work he received a telephone call from his office accountant who said that Mrs Ho had been trying to contact him. When he arrived at work shortly after 9.00am and after parking his car he saw Mrs Ho with a female police officer in the driveway of the workplace. He saw that Mrs Ho was visibly upset and crying. He spoke to her and she complained that her “manager” had assaulted her. She stated that he had pressed his finger on her forehead and that he had grabbed her clothing near the neck/throat area.
Mr Hemms deposes that a few days later Mrs Ho telephoned him and asked if he could return her office key and garage door controller to her employer as she was too afraid to go into the office. He complied with this request.
Mr Hemms was cross-examined on his affidavit. He conceded that his affidavit had been prepared from memory and that the words he attributed to Mrs Ho in it were his words, based on his recollection of what she had said, and were not intended to be the actual words used by Mrs Ho. He confirmed that he had told Mrs Ho that he had no objection to her parking her car in a space allocated to his firm.
Dr Thomas Luong
Dr Luong is a consultant psychiatrist. He initially prepared two reports on Mrs Ho dated 3 September 2002 and 28 July 2002. In his first report dated 3 September 2002, Dr Luong recites Mrs Ho’s history as given to him. He states:
On examination on 19 March 2002 Mrs Ho presented as a relatively advanced pregnant and attractive East Asian woman who looked tired and lethargic. She was polite, respectful and deferential in her manner. For example, she addressed me using Vietnamese terms as if I were her father or uncle (I am only 15 years older than her). She related in a matter of fact manner and displayed a lack of trust in myself (she was not prepared to be emotionally opened). As a result, rapport and therapeutic alliance were difficult to establish at this stage. She was overtly depressed and emotionally distressed throughout the interview. She was conversant in Vietnamese as well as English. She was coherent, sequential and logical in her speech (ie there was no disorder). There were no psychotic or obsessional phenomena elicited. She was well orientated to time, place and person.
Over the following four sessions her anxiety and depressive symptoms intensified. She became increasingly more fearful, more irritable, more worried, more distractable, more forgetful, not able to eat, more restless sleep associated with recurrent nightmares, severe headache, experiencing more self hatred and self blame, more hyper-vigilant associated with startled responses, more frequent recurrent vivid and intrusive images of being assaulted by her employer that kept entering her consciousness (despite strong efforts to block them out), suicidal thoughts, and experiencing dissociative episodes. The dissociative episodes were characterised by sudden acute fear, which led her to run away for between 15 to 20 minutes while she did not know where she was going. She reported that she wanted to end her life on several occasions because she felt powerless, helpless, useless and worthless whenever she experienced the recurrent vivid and intrusive recollections/images of being attacked, verbally and physically by Mr Kenny.
Dr Luong reports that in a further session on 4 April 2002 Mrs Ho revealed to him for the first time her allegations of sexual harassment. He reports that Mrs Ho was reluctant to reveal this information. She did, however, tell him that she had disclosed information to some work colleagues prior to 19 February 2002. She told Dr Luong that she did not want to disclose this information to him because of a sense of feeling ashamed, unworthy and dirty, a fear of being misunderstood and a fear of being rejected by her husband. She also reported a lack of money to pay legal expenses and a desire to get over the current stresses and distress she was experiencing so that she could undertake the task of caring for her newborn baby. Dr Luong states that at this time he could not elicit any further information from Mrs Ho.
Dr Luong then offers an opinion on the reasons for the delay in Mrs Ho disclosing information about sexual harassment. He puts this down to a profound Confuscian socio-political ideology in which Mrs Ho was immersed in Vietnam.
Dr Luong gives the opinion that Mrs Ho suffers from a major depression and post traumatic stress disorder. She also developed an adjustment disorder with mixed anxiety and depressed mood. After the events on 7 March 2002 she developed an acute stress disorder which gave rise to the post traumatic stress disorder a month later. The major depression developed probably soon after the development of the post traumatic stress disorder. Dr Luong considers that Mrs Ho’s condition was brought on by the sexual harassment of her and the treatment of her after she revealed her pregnancy to Mr Kenny as well as the alleged assault on 7 March 2002. Dr Luong’s prognosis is generally negative. He considers that Mrs Ho could suffer lifelong symptoms with exacerbations, and a waxing and waning pattern.
Dr Luong also reports that Mrs Ho comes from an intensely class conscious society in central Vietnam and would have been humiliated by being asked to do a menial task ordinarily undertaken by a servant. She would have experienced a sense of intense humiliation, shame and guilt towards her family and ancestors when she was ordered to do cleaning or collecting of unclean towels in toilets or other amenities.
In a second report dated 29 July 2003, Dr Luong provides updated information. He reports that Mrs Ho delivered a small baby girl in June 2002. He reports that his diagnosis remains unchanged in that Mrs Ho still suffers from PTSD and a major depressive disorder. She has reported difficulties at home due to deteriorating financial circumstances. Dr Luong has prescribed anti-depressants. Dr Luong reports that Mrs Ho’s depressive disorder has become “treatment resistant”.
Dr Luong gives the opinion that in September 2002 Mrs Ho was a happy and well adjusted person with a good work ethic prior to commencement with the second respondent. He reports that there was no known domestic disharmony between Mrs Ho and her husband prior to her becoming pregnant. Dr Luong also reports that the respondents’ affidavit evidence portraying Mrs Ho as an assertive person with Western style attitudes telling everybody about her problems is inconsistent with his analysis and the heavy Confuscian influence upon her that he found.
Dr Luong also refers to language factors and reports that Mrs Ho’s English, although adequate, is not fluent. He refers to Mr Robert Eddington’s affidavit which describes Mrs Ho using colloquial Australian expressions and ventures the opinion that it is doubtful if Mrs Ho had such a good command of English at the relevant time.
In oral evidence in chief, Dr Luong established his qualifications to give expert opinion on Mrs Ho’s mental state. His clinical notes were tendered (exhibit A2) and Dr Luong translated sections of those notes that were written in the Vietnamese language. Dr Luong confirmed that he has prescribed for Mrs Ho the anti-depressant Deptran, the anti‑depressant augmentation drug Ephilin, Serapax (a sedative), Inderal (which slows the heart rate) and Panamax. These are all current prescriptions.
Under cross-examination Dr Luong was asked whether he had considered Mrs Ho’s history in Vietnam as a possible cause of her mental state. Dr Luong accepted that Mrs Ho came from a middle class family which had suffered some persecution by the Communist regime established throughout Vietnam from 1975. However, he stated that he did not consider that those family experiences would have had a significantly adverse impact on Mrs Ho’s mental state given that she was born after the end of the Vietnamese war in 1975, and that she had been sponsored to come to Australia by relatives here, and had not come as an involuntary refugee. He accepted that refugees can suffer similar mental disabilities to that which he found in Mrs Ho but he did not consider that Mrs Ho’s mental disabilities were caused by her experiences in Vietnam or her travel to Australia.
Dr Luong was asked whether Mrs Ho was disassociated. He had not diagnosed disassociation as a condition in her but had observed an episode of disassociation on 16 April 2002. He was asked whether a person who experience a disassociation episode and suffered from Post Traumatic Stress Disorder was vulnerable to suggestions affecting their recollections. Dr Luong did not consider that Mrs Ho was particularly vulnerable to memory suggestion because he found that her recollections were vivid and she did not appear to be suffering from a personality disorder. He recalled that he had raised the issue of sexual harassment with Mrs Ho after six therapy sessions and she initially denied that there had been any sexual harassment. He discounted the possibility that he had been responsible for implanting any recollections in Mrs Ho’s memory. He stated that in his assessment Mrs Ho had a stable personality generally and was not emotionally immature. He stated that only a person with a personality disorder or who was mentally immature would be particularly vulnerable to suggestions resulting in false recollections. In response to a question from me, he accepted that persons suffering from Post Traumatic Stress Disorder, particularly where associated with severe depression, could have difficulty recalling events. He stated that in Mrs Ho’s case her depression was only moderate and he did not think that she had a particular difficulty with her recollections.
Dr Luong was asked about his opinion that cultural factors played a role in Mrs Ho not revealing events of sexual harassment until long after these had occurred. He was asked whether it would be inconsistent with his analysis for Mrs Ho to have confronted her persecutor. He thought not. I asked him if he would be surprised to know that Mrs Ho had revealed certain elements of the alleged harassment to male work colleagues. Dr Luong said that this was not surprising and that he was aware that certain details had been revealed by Mrs Ho to male work colleagues.
Dr Luong was asked about the importance of considering malingering in Post Traumatic Stress Disorder cases. He stated that he had considered it but did not think that Mrs Ho was a malingerer. He found her disclosures to be genuine. He stated that although Mrs Ho’s symptoms were now much improved, there was no indication of malingering and her depressive symptoms continued. He stated that she was, nevertheless, less distressed than previously. I asked Dr Luong whether he considered that Mrs Ho was now fit to work. He stated that she was not currently fit to work and would not be fit to work for at least three months. He was not able to venture any opinion about the type of work that Mrs Ho might be fit to do when she resumes work.
I asked Dr Luong whether, in his opinion, Mrs Ho was able to give reliable evidence and whether she was able to give reliable instructions to her legal advisers. Dr Luong expressed confidence that Mrs Ho was able to give reliable evidence and reliable instructions.
The respondents rely on affidavits by Mr Neil Kenny filed on 26 June 2003, Mr Robert Eddington filed on 27 June 2003, Mrs Joanne Kenny filed on 26 June 2003, Mr Nick Denman filed on 27 June 2003, Mrs Yan Lui filed on 28 August 2003 and Mr Barry Robinson filed on 27 June 2003..
Mr Neil Kenny
Mr Kenny is the managing director of the first respondent and the owner of the business. Mr Kenny deposes as to Mrs Ho’s basic employment details. He denies all allegations of sexual harassment against him by Mrs Ho. He deposes that Mrs Ho was apparently happy in the workplace until the time she became pregnant. He deposes that he became concerned about her work attitude and her attitude towards him. He deposes as to an altercation between him and Mrs Ho on 7 March 2002 over the question of where she was parking her car. He denies assaulting Mrs Ho.
Mr Kenny deposes that shortly after Mrs Ho commenced employment with the first respondent on 30 October 2000 she told him that she liked his car and would like to go for a ride in it sometime. Mr Kenny deposes that he said that he might be able to take her for a ride “sometime later”. The car in question was a 1980 XJS Jaguar which had been fully restored. Mr Kenny denies that he made any specific request to Mrs Ho to ride in his car. Mr Kenny denies that he invited Mrs Ho out to lunch on 27 February 2001. He deposes that he gave her a box of chocolates the following day as it was her birthday. He deposes that he did invite Mrs Ho to lunch on 28 February 2001 [apparently in response to a request from Mrs Ho] as it was Mrs Ho’s birthday and she seemed to be working well. He deposes that he asked whether she would like Robert Eddington to come as well but Mrs Ho declined that suggestion. Mr Kenny deposes that he took Mrs Ho to lunch at an Italian restaurant near the Westpac Bank at Parramatta. He deposes that during the lunch Mrs Ho spoke about her mother’s health and towards the end of the lunch she asked him why he had chosen her for the accounts position. Mr Kenny deposes that he replied:
You appeared to be the best person for the position. You had impressed me as you seemed to be knowledgable about MYOB accounting software.
Mr Kenny deposes that Mrs Ho then said to him, in a very conspiratorial tone, words to the effect of:
You can tell me anything.
Mr Kenny says he did not comment.
Mr Kenny completely denies the allegation against him concerning the offer to give Mrs Ho a full body massage. He denies that Mrs Ho threatened to resign and denies making any promise not to harass her.
Mr Kenny deposes that in May 2001 Mrs Ho accompanied him to the Westpac Bank at Parramatta, not to the St George Bank as Mrs Ho alleges. He denies inviting her to go to the Parkroyal Hotel with him. He admits entering Mr Eddington’s office later to speak to Mr Eddington when Mrs Ho was there. He deposes that Mrs Ho said words to him to the effect of:
I am having a problem with a purchase order and we are trying to sort it out.
Mr Kenny denies any inappropriate sexual behaviour following this alleged incident. He deposes that between August and November 2001 Mrs Ho frequently requested more money. He deposes that his trip to Queensland to attend a motor car race in November 2001 was well known to staff of the first respondent as he had invited and supplied entry tickets and pit passes for any of the staff who wished to attend local race meetings.
Mr Kenny denies that his staff access pornographic material on the internet at the workplace or watch pornographic videos or view photographs. He denies that there has ever been any sexual intercourse on the office premises. Mr Kenny denies that he became upset when he found out that Mrs Ho was pregnant. He denies Mrs Ho attempted to organise a meeting with him but admits receiving a letter from her dated 18 February 2002. He deposes that he asked Mrs Ho the dates she wanted off for maternity leave but Mrs Ho did not tell him. He deposes that Mrs Ho told him that she would decide this after getting a doctor’s certificate. Mr Kenny deposes that Mrs Ho’s attitude to the company and him changed completely in November 2001. She became withdrawn and uncommunicative. He deposes that he asked her if anything was troubling her in December 2001 and January 2002. She said she had trouble at home and her husband was beating her and she wanted a divorce. Mr Kenny deposes that he gave Mrs Ho a warning about her work performance in December 2001.
Mr Kenny deposes that a meeting took place between himself, Mrs Ho and Mr Robinson on 25 February 2002 at 11.00am. He had requested the meeting as he was concerned about Mrs Ho’s attitude to her work and her attitude to her co-workers and him. He told Mrs Ho that he wanted to have a meeting to clarify the dates for her maternity leave and other work issues. He deposes that Mrs Ho, at the meeting, said that she wanted three months off for maternity leave. He replied that three months was probably not long enough and she should consider taking off more time. He deposes that he was merely trying to assist Mrs Ho. He denies that at this time he had any intention of terminating Mrs Ho’s employment. He denies any further meeting about maternity leave and denies that he ever refused maternity leave. He admits receiving from Mrs Ho a book relating to maternity leave on or about 25 February 2002. He denies receiving from Mrs Ho a letter confirming her maternity leave request. He denies refusing to accept it.
Mr Kenny deposes that on 6 [probably 7] March 2002 Robert Eddington told him that Mrs Ho had reported that her car mirror had been damaged in the parking area and that she had implied that he, Mr Kenny, had damaged it. He deposes that he inspected Mrs Ho’s car and saw no damage to either mirror. He deposes that he spoke to Mrs Ho about parking her car in the wrong place later that day and that he directed her to park only in a designated parking spot of the first respondent. He deposes that he heard Mrs Ho say words to the effect of:
Asshole prick.
He deposes that he wagged his finger at Mrs Ho and said to her:
I’ve had enough of your manner. I’m going to give you a first written warning of notice of dismissal.
Mr Kenny denies that he touched Mrs Ho or raised his voice. He did not scream or become upset. He denies that he threatened to kill her. He deposes that, following the meeting on 25 February 2002, he had formed the opinion that Mrs Ho was endeavouring to create an unfair dismissal situation. He stayed away from her as much as possible. He deposes that police attended the workplace on 7 March 2002 and interviewed him. He deposes that no charges had been laid.
Mr Kenny states that he did send a letter terminating Mrs Ho’s employment dated 7 March 2002. He deposes that he has the opinion that Mrs Ho has taken an aggressive stance and made fraudulent claims of assault and harassment. He deposes that Mrs Ho has made a workers’ compensation claim that he believes is also fraudulent. He deposes also to poor work performance by Mrs Ho in March 2002 and attaches documents to verify his opinion.
In examination-in-chief Mr Kenny augmented his affidavit evidence by denying the allegations made by Mrs Ho in paragraph 25 of her affidavit. In relation to paragraph 4 of Mrs Ho’s affidavit Mr Kenny admitted that the applicant had accused him of “talking dirty” to her and he admitted that the conversation between him and Mrs Ho became “heated”. He stated that, nevertheless, the conversation moved on to discuss maternity leave sought by the applicant and that when the applicant had indicated she wanted three months maternity leave, Mr Kenny told her “you’ve got it”. Mr Kenny stated, in relation to the lunch attended by him and by Mrs Ho, that the restaurant they went to was the La Bella Vista restaurant at 40 Phillip Street, Parramatta, about a block away from the St George Bank in Phillip Street.
Under cross-examination Mr Kenny was resolute. He repeatedly described as total lies the allegations by Mrs Ho that were put to him concerning the alleged sexual harassment. Mr Kenny stated that Mrs Ho’s attitude to him and to her work changed after she became pregnant, towards the end of 2001. He stated that she became withdrawn and uncommunicative. He was not able to explain Mrs Ho’s change in attitude although, in response to a question from me, he ventured the proposition that Mrs Ho was under financial pressure and was looking for an opportunity for financial gain.
Mr Kenny was asked about when he first became aware of Mrs Ho’s pregnancy. He said this was around 18 or 19 February 2002. He stated that he was “flabbergasted” by the news as Mrs Ho had told him that she had not intended to have children. He agreed with Ms Brus that he did not offer congratulations. Mr Kenny was asked about the meeting which took place between him, Mrs Ho and Mr Robinson on 25 February 2002. He stated that he had asked Mr Robinson to be a witness at the meeting but also stated that no notes were taken either by him or by Mr Robinson. He said that he had wanted to clarify things because Mrs Ho had had a strange attitude. Mr Kenny stated that the only other employee who had applied for maternity leave in the past 10 years was Mrs Lui. He denied a suggestion by Ms Brus that he was irritated by Mrs Lui’s maternity leave. He stated that the company “worked around it”. He stated that the meeting began with his work concerns about Mrs Ho. He asked her if she had any problems. He wanted to “get the issue out of the way”. Initially, Mrs Ho did not answer so he pressed her. It was at this point that Mrs Ho raised the allegations of sexual harassment. Mr Kenny stated that he was upset by the allegation and did raise his voice a little but denied that he became angry. He accepted that Mr Robinson had said that he should “cool it”.
Mr Kenny was asked about the discussion between him and Mrs Ho on 7 March 2002 about her use of the wrong car parking space. He stated that he explained the situation to Mrs Ho and told her she needed to park in the correct parking area. He stated that he assumed that Mrs Ho did not have any authorisation from the owner of the car parking space she was using. When he heard that Mrs Ho had complained of damage to the external mirror on her car he inspected her car but found no damage. He denied pressing his finger into Mrs Ho’s forehead but admitted wagging his finger at her. He admitted saying words to the effect, “Do I have to give you a written instruction?” He accepted that there were plenty of parking spots available in the building and that the car park was never full. He was concerned that if Mrs Ho parked in the wrong spot the owner of the parking spot could object. He admitted that he had not received any objection. He denied Ms Brus’s suggestion that he was frustrated with Mrs Ho but stated that he was concerned about her attitude to work. He stated that Mrs Ho muttered something at him which sounded like “arsehole prick”.
Mr Kenny stated that after Mrs Ho made allegations against him of assault to the police he took legal advice and prepared a letter to Mrs Ho which stated that she had been deemed to have resigned.
Mr Kenny was asked about the lunch that he had with Mrs Ho. He stated that he rarely went out to lunch. Mrs Ho asked him and he felt obliged to accept. He felt it strange that Mrs Ho had made a conspiratorial comment to him along the lines of “you can tell me anything”. I asked Mr Kenny if he felt that Mrs Ho was physically attracted to him. He thought not. He said he was definitely not physically attracted to Mrs Ho.
Mr Kenny also stated that he became concerned when he found that the GIO was paying workers’ compensation to Mrs Ho. He sent three letters to GIO: exhibit R11, in which he objected to the payments and accused Mrs Ho of making fraudulent claims. GIO did not respond.
Robert Eddington
Mr Eddington is an employee of the first respondent and has worked for the company for seven years. He denies Mrs Ho’s account of the alleged invitation to ride in Mr Kenny’s car but deposes that very early in Mrs Ho’s employment Mrs Ho said to Mr Kenny in his presence:
I like your car. I would like to be taken for a drive in it.
A short time later, Mrs Ho told Mr Kenny words to the effect of:
Neil has offered to take me for a drive in his Jag. I didn’t really want to so I made up an excuse.
Mr Eddington deposes that he replied with words to the effect of:
Just say you don’t want to go if you don’t want to.
He deposes that Mrs Ho replied with words to the effect of:
Well I can’t say that, it was me who showed Neil a lot of interest in his car. I did this to suck up to him and get in his good books.
Mr Eddington deposes that he formed the opinion that Mrs Ho was “continually dragging on the issue and complicating the matter by not telling Mr Kenny she did not want to go for a drive”. He denies that he was told by Mrs Ho that she had continually refused to go for a ride and that Mr Kenny would not listen. He admits saying that he would speak to “Nick and Matt” and get back to her. He deposes that he did later speak to Matt Boland and Nick Denman about the matter. He deposes that he said words to the effect of:
I don’t know why Maria just can’t say “no” to taking a ride in Mr Kenny’s car. I don’t know what else to say to her.
He deposes that he formed the opinion that the whole issue was becoming ridiculous and that he would prefer to keep his distance from the matter.
Mr Eddington deposes that he recalls Mrs Ho coming into his office one day and telling him words to the effect:
I just had lunch with Mr Kenny.
He deposes that “she made no other comments of significance”. He denies the conversations attributed to him in paragraphs 20 and 21 of Mrs Ho’s affidavit. He deposes that Mr Kenny did enter his office when Mrs Ho was there and Mrs Ho said words to the effect:
We are sorting out a problem with a purchase order.
Mr Eddington deposes that he thought that this was a perfect opportunity for Mrs Ho to say something in front of a witness concerning her alleged discomfort or displeasure with Mr Kenny. He formed the opinion that her concerns were not true as she did not take up that opportunity.
Mr Eddington annexed to his affidavit a statement that he prepared for GIO in relation to Mrs Ho’s workers’ compensation claim. He deposes that Mrs Ho told him that Mr Kenny had waved his finger at her and said that he was going to give her a written warning about parking her car in the wrong place and not doing accounting reports on time. He deposes that at no time did Mrs Ho tell him that Mr Kenny assaulted her or touched her at any time.
The cross-examination of Mr Eddington was surprising. Although it was not mentioned in his affidavit or his statements made for the purposes of proceedings in the Human Rights and Equal Opportunity Commission and the Industrial Relations Commission, Mr Eddington admitted that Mrs Ho had spoken to him about her allegations that Mr Kenny had professed his love for her, that he had asked her to go to the Parkroyal Hotel and make love, and that he had offered to give her a full body massage. He was not sure about the timing of these conversations. He stated that in seven years employment he had never been to lunch with Mr Kenny. When Mrs Ho told him that she had been to lunch with Mr Kenny and he had professed his love for her he was shocked and said that he did not believe it. Ms Brus indicated to Mr Eddington that this was inconsistent with what he said in paragraph 7 of his affidavit, where he had stated that Mrs Ho had simply stated that she had been to lunch with Mr Kenny. He appeared confused and said that he was uncertain about the timing. Mr Eddington accepted in general terms the allegations in Mrs Ho’s affidavit about what she had said to him concerning the lunch, the “body massage” issue following the lunch and the later invitation to go to the Parkroyal. He said that he expressed his disbelief and said that he did not know what he was expected to do. He agreed that Mrs Ho told him these things about 12 months before she left the company.
Mr Eddington was asked whether he raised the issues with Mr Kenny. He said not. He said that he did not know how to approach the issue. He accepted that the allegations were serious and that if true, the conduct would be improper. He did speak to Mr Denman about the initial allegation made by Mrs Ho concerning the invitation to go in Mr Kenny’s car but he did not raise with anyone the more serious later allegations. Mr Eddington said that he thought the way in which Mrs Ho raised the allegations with him was strange and he did not know what to make of it. He felt that she was trying to gauge his reaction to the allegations. I asked him whether he thought there might be some cultural factors at work and he agreed that that could be so. I asked him whether it was possible that Mrs Ho was looking to him to take some lead in the matter. He agreed that this could be so. If that were so, he did not take the lead. He did not know what to do.
I asked Mr Eddington whether, as a manager, he knew about his responsibilities in relation to sexual harassment allegations. He said no. He said that the responsibilities of a manager had not been explained to him. He simply did not know what to do.
I asked Mr Eddington whether he thought now he should have done something. He said yes. He said that he should have confronted the issue and should have raised the matter with Mr Kenny.
Mr Eddington was asked about the incident on the final day of Mrs Ho’s employment. He said that he found her very upset and she told him that Mr Kenny had instructed her to move her car and she referred to him waving his finger at her. She did not make any allegation of him touching her with his finger or grabbing her.
Joanne Kenny
Joanne Kenny is the wife of the second respondent and an employee of the first respondent. She deposes that she first met Mrs Ho when Mrs Ho commenced employment with the first respondent on 30 October 2000. She assisted in training Mrs Ho. She deposes that she rarely attended the company offices after Mrs Ho commenced employment apart from casual reception relief duties and to collect the laundry on Friday afternoons. She deposes that in February 2002 she decided that the laundry should be collected by another employee. She asked Mrs Ho if she would mind changing the hand towels in the downstairs bathroom and the kitchen tablecloths. She deposes that Mrs Ho agreed to do this and at no stage did Mrs Ho say or indicate that she was not willing to comply with the request.
Mrs Kenny deposes that in the same month when she was at the reception desk Mrs Ho approached her and told her that she was pregnant. Mrs Kenny replied:
You’re kidding.
Mrs Kenny deposes that later she apologised for being abrupt and offered congratulations. She denies that she told Mrs Ho that she would not accept maternity leave.
Under cross-examination Mrs Kenny accepted that she had no power of direction over staff. She stated that she had not directed Mrs Ho to change the towels in the men’s washroom but had asked her to do it as a favour. Mrs Kenny was asked when she first found out that Mrs Ho was pregnant. She could not recall precisely and said that this was not something that she has learnt from her husband. She thought she found out after she had requested Mrs Ho to change the towels.
Mrs Kenny said that she was initially shocked when she found out that Mrs Ho was pregnant because she understood that Mrs Ho did not intend to get pregnant. She returned to Mrs Ho’s room and said that she congratulated Mrs Ho on the pregnancy because she realised that her initial reaction was inappropriate. Mrs Kenny denied she was unhappy about Mrs Ho’s pregnancy because she would have to return to work. She accepted that she might have had to come back to work and in fact did so. Mrs Kenny denied as a total lie the proposition that she told Mrs Ho she would not allow her time off for her pregnancy.
In response to a question from me, Mrs Kenny stated that she did not become aware of the allegations of sexual harassment against her husband until after the present proceedings had been commenced.
Nick Denman
Nick Denman is employed as a research and development engineer by the first respondent. He deposes as to a conversation with Mrs Ho in May 2001 in which he suggested to Mrs Ho that she seek professional advice about her concerns. He deposes that he had formed the opinion that Mrs Ho had personal issues to deal with and he did not want to get involved. He wanted her to confide in someone else. He deposes that within a couple of weeks of her commencing employment Mrs Ho began to confide personal information in him.
Mr Denman deposes that on 19 February 2002 Mrs Ho asked him to witness that she had handed Mr Kenny a letter and he agreed. He confirms that he witnessed Mrs Ho handing Mrs Kenny a booklet and signed the letter confirming that she had done so. He believed that Mrs Ho was informing Mr Kenny of her maternity leave entitlements.
In additional oral evidence in chief, in relation to paragraph 3 of his affidavit, Mr Denman said that he went to Mrs Ho’s office in response to a request from her. She spoke to him about the alleged incident in which Mr Kenny invited Mrs Ho to go to the Parkroyal Hotel with him. He had understood that Mrs Ho had had a computer problem but in fact there was no computer problem and Mr Denman discovered that Mrs Ho wanted to confide this personal matter in him. He said that he “switched off” when he realised that there was no computer problem. He said that Mrs Ho spoke about the alleged invitation to go to the Parkroyal Hotel and asked what she should do. Mr Denman said that Mrs Ho’s demeanour was not upset or worried. It was as if she was making a general enquiry. His reaction was “oh no” although he apparently did not verbalise this.
Mr Denman explained that this was not the first occasion in which Mrs Ho had confided personal information in him. He said that there had been several such incidents and he felt embarrassed by it. He said that he had on several occasions suggested that Mrs Ho seek some professional advice such as counselling. None of the earlier incidents had involved any allegations of sexual harassment against Mr Kenny or any other staff member of the first respondent.
I asked Mr Denman whether Mrs Ho had raised all of these personal issues with him in the same way. He said she had. He said that she had come to him about the Parkroyal incident on the day it had allegedly happened and that she had raised it in a similar way that she had raised earlier personal problems. There was no difference in her manner on this occasion. I asked him if the earlier incidents had appeared to be genuine personal problems. He thought so. I asked if the incident about the Parkroyal Hotel also appeared to be a genuine personal problem. He was not so sure. He had doubts. He could not explain why. Finally he said that he had by this stage heard a lot of personal issues from Mrs Ho and he was sick of it.
Under cross-examination Ms Brus asked Mr Denman what harassment was. He said it was unwanted attention. He was asked if he had ever witnessed Mr Kenny harass anyone. He said no. He had not received any training from the first respondent in relation to harassment complaints or grievances.
Ms Brus asked Mr Denman about an alleged incident in March 2001 when Mrs Ho said that she discovered two employees having sex in the workplace. Mr Denman said he knew nothing of it. He had been since told of the allegation. He vehemently denied the suggestion that he was the male employee involved.
Mr Denman was asked about car parking in the building. He said that most of the time 65 to 70 per cent of the car spaces were full. He had been instructed where to park his car very soon after he joined the company by Mr Kenny.
Yan Lui
Mrs Yan Lui is an employee of the first respondent. She deposes as to a statement she made to an investigator from GIO Australia regarding her employment and her maternity leave. She deposes that in July 1997 she took a period of maternity leave, and that she initially requested three months leave, which was granted. She deposes that at the time she requested maternity leave Mr Eddington told her, on behalf of the first respondent, that she could take up to 12 months. She deposes that after her initial period of three months leave had expired she contacted Mr Eddington and requested 12 more months off. Later, Mr Kenny spoke to her and told her to come back when she wanted to. She deposes that she returned to work at Regulator approximately three years after she started taking maternity leave and that she returned to work on a part time basis.
In oral evidence in chief Mrs Lui explained that she took maternity leave approximately eight months after becoming pregnant.
In cross-examination Mrs Lui stated that she initially took maternity leave for 10 months after being told that she could have maternity leave for up to one year. She later extended this for a longer period and, after she decided to take more than 12 months maternity leave, she resigned her employment. Some three years later she was re-employed by the first respondent in a different job on a permanent part time basis.
Barry Robinson
Mr Robinson is the sales manager with the first respondent and he has worked for the company in that position for nearly three years. He deposes that on 25 February 2002 he attended a meeting with Mrs Ho and Mr Kenny at approximately 11.00am. He deposes that Mr Kenny requested his attendance and told him that he was concerned about Mrs Ho’s attitude at work which had changed dramatically since she became pregnant. He denies that at the meeting Mr Kenny said that he was going to get a temporary employee in or that Mrs Ho asked Mr Kenny for a letter confirming her maternity leave. He deposes that Mr Kenny asked Mrs Ho how long she needed for maternity leave and that Mrs Ho said six weeks. Mr Kenny asked for a letter confirming her request for leave and said that he would respond to it formally. He deposes that later in the afternoon he asked Mr Kenny if Mrs Ho had given him the doctor’s letter she said she had in her car but Mr Kenny had told him that she had not given it to him.
Mr Robinson denies that at the meeting Mr Kenny said he was not happy with Mrs Ho’s attitude and that she walked away from him when he was talking to her about work. He deposes that Mr Kenny did say to Mrs Ho that he had noticed that her attitude was changed and that he had asked her what was wrong. He deposes that Mrs Ho responded that nothing was wrong and that she did her job and that was all that Mr Kenny had to worry about. Mr Robinson denies that at the meeting Mr Kenny said that he was terminating Mrs Ho’s employment effective immediately. He denies that he told Mrs Ho that the reason Mr Kenny would not accept her maternity leave was that Mr Kenny wanted her to stay at home and look after her baby. He deposes that Mr Kenny had said words to the following effect:
Maria has suggested that she was being discriminated against because I thought she was going to be a bad mother because she wanted to return to work up to six weeks after the baby was born. I wonder if six weeks maternity leave is really long enough.
Mr Robinson deposes that until the time of Mrs Ho’s pregnancy he had thought her happy in the job and had no reason to think otherwise. However, after the meeting he formed the opinion that “something was going on with Maria”. After she had become pregnant she had stopped talking to people and he observed her to become increasingly abrupt at work.
Mr Robinson annexes to his affidavit a statement he provided to an investigator from GIO concerning the alleged assault on Mrs Ho by Mr Kenny. He also annexes his statement to HREOC about the complaint made to HREOC by Mrs Ho.
In further oral evidence in chief Mr Robinson stated, in relation to paragraph 8 of his affidavit, that at the meeting between him, Mrs Ho and Mr Kenny, after Mr Kenny had queried Mrs Ho’s attitude towards him she had accused Mr Kenny of “talking dirty” to her. Mr Kenny expressed incredulity and asked “what are you talking about?” It was at this point that Mr Robinson brought the meeting to a halt. In cross‑examination Mr Robinson stated that he had known Mr Kenny for about 30 years, although he did not consider himself a friend. They did not have social contact. There had been a gap in his employment with the first respondent and he had in total worked for the first respondent for about 10 years. He stated that it was an unspoken rule in the workplace that there would be no inappropriate touching of another staff member.
Mr Robinson was questioned at length by Ms Brus about the meeting where he was to be an observer. Mr Robinson ultimately stated that he understood that he was asked to be an observer at the meeting primarily for the purpose of clarifying Mrs Ho’s maternity leave, given some apparent concern on her part. A secondary purpose was for Mr Kenny to raise with Mrs Ho concerns he had about her change in attitude.
Mr Robinson thought that Mrs Ho was seeking six weeks maternity leave. He conceded he could be mistaken and that it may have been that Mrs Ho was asking to come back to work six weeks after the baby was born. He stated that after Mr Kenny suggested that she might need to look after the baby for a longer period before returning to work Mrs Ho became upset and said to Mr Robinson that Mr Kenny was accusing her of being a bad mother. Mrs Ho had said that the care of her child was no business of the company. Mr Robinson said that after this Mr Kenny raised with Mrs Ho his concern about her attitude and she responded by accusing him of “talking dirty” to her. At this point Mr Robinson suggested that the meeting be stopped and confirmed what he understood Mr Kenny had already said, namely that Mrs Ho would get the maternity leave she was seeking.
Ms Brus asked Mr Robinson why he did not continue with the meeting in an attempt to get to the bottom of the accusation which was, in effect, an accusation of sexual harassment. Mr Robinson said that he did not believe the accusation and did not want to know about it. He did not want to get into a slanging match. He had seen nothing like that occur and he was not prepared to listen to “rubbish” like that.
Mr Robinson said that after the meeting he suggested to Mr Kenny that Mrs Ho may have been trying to set up an unfair dismissal claim. He conceded that he had no prior experience of an employee trying to do this. In response to questions from me, Mr Robinson accepted that it was quite possible that Mrs Ho was simply agitated because she was under financial pressure and may have felt (erroneously in Mr Robinson’s view) that she was being pressured to accept a longer period of maternity leave which would have left her without income. He also accepted, as a hypothetical proposition, that if there had been an intimate relationship between Mrs Ho and Mr Kenny, Mrs Ho may have thrown the accusation about Mr Kenny “talking dirty” to her into the discussion in her agitated state.
Mr Robinson expressly denied suggestions that at the meeting Mr Kenny had denied maternity leave to Mrs Ho and had threatened to sack her.
The adjourned hearing
On 4 September 2003 the further hearing of this matter was adjourned in order to permit the respondents to produce further medical evidence about the applicant. The respondents were ordered to pay the daily hearing fee for any further hearing required in order to deal with such further medical evidence. The applicant was ordered to attend a medical examination with a Dr Robertson at 4.00pm on 19 September 2003.
Dr Michael Robertson
Dr Michael Robertson, a consultant psychiatrist, presented two reports, dated 23 September 2003 and 10 October 2003. These were introduced into evidence as annexures to the affidavit of David Kingsleigh Palmer, a solicitor for the respondents. Dr Robertson gave oral evidence in relation to his reports and also was cross-examined. Dr Robertson recites the history given to him by Mrs Ho and his questions to her about it. He states that there was no evidence of dissociation in his interview with Mrs Ho, despite in depth questioning of the alleged traumatic stressor. The interview lasted approximately one hour. Dr Robinson describes Mrs Ho’s mood as “dysphoric”, meaning distressed rather than depressed. Dr Robertson notes what appeared to him to be inconsistencies in the history he obtained from Mrs Ho, when compared with that provided by Dr Luong. In Dr Robertson’s opinion, Mrs Ho does not exhibit the symptoms of Post Traumatic Stress Disorder. He notes that Mrs Ho appears to have adopted some psychiatric jargon, possibly as a result of her numerous examinations but that, when viewed objectively, she lacked the symptomatology consistent with PTSD. Nevertheless, in Dr Robertson’s opinion, Mrs Ho is suffering from a form of psychological distress, probably a mild depressive illness. In his opinion, this may be contributed to by Mrs Ho’s personality which showed elements of narcissism and hysteria. In Dr Robertson’s view Mrs Ho’s PTSD symptoms are either distorted or possibly “malingered” (made up) although the latter is less likely. Dr Robertson accepts that Mrs Ho has developed psychological symptoms in the context of some factors in the workplace but he associates this with a possible disappointment of expectations rather than assault or sexual harassment. He considers that Mrs Ho’s responses of anger, rage and indignation are not typical of sexual harassment or sexual assault. The symptoms of psychological distress exhibited by Mrs Ho indicates to Dr Robertson a diagnosis of an adjustment disorder. He also speculated that Mrs Ho may be non-compliant with her treatment (she may not be taking her prescribed medication).
In his second report of 10 October 2003 Dr Robertson opines that Mrs Ho is not permanently incapacitated, although she is unlikely to recover her pre-injury work capacity with Regulator Australia, given the extent of the dispute between the parties so far and the impact this has had upon her. Dr Robertson agrees with Dr Luong that Mrs Ho’s treatment has stalled, probably due to the impact of the conduct of the present litigation. However, he does not agree with Dr Luong that the current impairment on Mrs Ho’s employability is related to PTSD. Neither does he consider that it is related to his diagnosis of an adjustment disorder. Dr Robertson considers that Mrs Ho’s current employment impairment is circumstantial, relating to her distress arising from the legal proceedings and her damaged self concept and associated psychological distress.
In his oral evidence in chief, Dr Robertson described Mrs Ho’s condition as a temporary onset of psychological symptoms beyond the range of normal. She is certainly distressed with possible multiple causes. He doubted that she was a malingerer. Under cross‑examination Dr Robertson acknowledged that both Dr Snowden and Dr Napper had also given diagnoses of PTSD in relation to Mrs Ho’s workers’ compensation claim but he felt that his examination was more thorough and his perspective more objective. He resisted suggestions that the diagnosis of PTSD was correct.
I permitted the applicant to introduce a follow up report by Dr Luong (exhibit A10). Dr Luong gave oral evidence in relation to this report, which was heavily edited after consultation between the legal representatives. Dr Luong took issue with Dr Robertson’s reports, in particular his first report. He appears to regard Dr Robertson’s first report as an attack upon his own. He disagrees with Dr Robertson’s assessment of Mrs Ho having a narcissistic/histrionic personality. He emphasised that his report was consistent with earlier assessments of PTSD and also emphasised that the symptomatology observed at the early stages of his treatment of Mrs Ho was strongly consistent with a PTSD diagnosis. In response to a question from me, Dr Luong stated that Mrs Ho’s symptoms have moderated significantly over time and that, in his opinion, what Dr Robertson observed was not a mild adjustment disorder symptomatology but the symptomatology of a patient with a major depressive illness, who is currently in remission. Dr Luong disagrees with Dr Robertson’s view that Mrs Ho may not be taking her medication. He states that the absence of side effects exhibited currently by Mrs Ho does not indicate a refusal of medication because she initially showed side effects of the medication but these alleviated over time. He also expressed the opinion that the improvement of Mrs Ho’s condition over time shows the positive impact of the medication and that, if Mrs Ho had ceased taking her medication, she would have shown a marked deterioration.
Dr Luong’s evidence concluded the presentation of evidence. I called for written submissions from both parties.
Submissions
Ms Brus, on behalf of the applicant, filed written submissions on 7 March 2004. She relevantly submits as follows:
The applicant’s evidence presents her case as having two distinct components.
The first component is the sexual harassment by Mr Neil Kenny over a period of time. The nature of this harassment being: unwelcome sexual suggestions and invitations to engage in sexual activities.
Section 28A of the SDA defines sexual harassment as follows:
(1)For the purpose of this division, a person sexually harasses another person (the person harassed) if:
(a)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b)engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person would be offended, humiliated or intimidated.
(2)In this section: conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
The applicant’s evidence as to the incidents appears in her affidavit filed in these proceedings. Not surprisingly, the applicant was cross‑examined extensively on the incidents and it is notable that the applicant remained committed to her evidence.
The applicant asserts that the first respondent consistently made comments of a sexual nature and made a number of offers of sexual favours and activities. The applicant’s recall of all the occasions that this type of conduct took place is limited, however she relies upon three specific incidents that she says were typical of the first respondent’s conduct towards her.
The first in a series of incidents which the applicant asserts were incidents of sexual harassment, involved the applicant being invited to “go for a ride” with Mr Kenny in his motor vehicle. The invitation to - go for a ride, in itself, carries no sexual characteristics and were this the only incident it would be difficult to sustain an argument that it amounted to an act of sexual harassment. However, when viewed in the context of what followed, it is the applicant’s submission that the invitation to go for a ride was a covert invitation to the applicant to engage in some type of sexual activity with the first respondent.
The second matter related to the exchange between the applicant and the first respondent when they had lunch together at a restaurant in Parramatta in February 2001. It is of little import that the applicant could not remember the name of the restaurant where she says Neil Kenny took her to lunch under false pretences and then proceeded to make unwelcome sexual suggestions including a pronouncement that he was in love with the applicant. Upon return to the office, the first respondent then stated that the applicant should take off her clothes so he could give her a full body massage.
The inability of the applicant to recall the name of the restaurant seemed to take on some major importance for the respondent. The applicant can only assume that it will be contended that if her recall about the name is so poor, then doubt must be cast over the entirety of her recall about what took place at the lunch.
Such a contention is baseless. The applicant had no reason to recall, other then in general terms, where she ate but she had good reason to recall the unsavory conduct of Mr Kenny. It caused her distress and continues to cause her distress.
The third incident about which the applicant gave evidence concerns the suggestion by Neil Kenny that she accompany him to the Parkroyal Hotel and “make love”.
The fourth incident pertains to Mr Kenny inviting the applicant to accompany him to a car racing meet in Queensland and another declaration by the first respondent of his strong feelings for the applicant.
As is often the case, the only persons present during the above exchanges were the applicant and the first respondent. Neither the applicant nor the first respondent can provide any corroborating evidence to support their version of events and as such the Court is placed in a difficult situation in assessing the veracity of the complaints.
In this case however, the Court is assisted by the fact that the complainant contemporaneously conveyed her concerns about the first respondent’s conduct to her co-workers. On each occasion that the respondent made his sexual overtures to the applicant she advised other staff of the second respondent as to what had taken place. In particular, she advised Mr Eddington who, on the applicant’s evidence was sympathetic but could not or would not do anything to help her.
In cross-examination Mr Eddington confirmed that the applicant had advised him of the conduct of Mr Kenny. This evidence was in stark contrast to the material contained in his affidavit, which clearly implied that he knew nothing of the applicant’s complaints against Mr Kenny.
Although Mr Eddington could not confirm when the incidents took place, it is reasonable to assume on the basis of his evidence and that of the applicant that such advice was contemporaneous to the incidents in question.
The evidence of Eddington corroborates that part of the applicant’s evidence about telling other people about the conduct of Mr Kenny.
The applicant also told Mr Denman of the various incidents including the invitation to attend the Parkroyal. Although Denman confirmed being advised of the incidents by the applicant, he was obviously not interested in anything she had to say. As he stressed in cross-examination – “he was always too busy” to be concerned about any of the issues the applicant raised with him. He regarded them as mere throwaway lines, certainly not as a cry for help.
It was put to the applicant that she had told no one, because there was nothing to tell. Clearly this was not the case and, the applicant vigorously denied such a proposition. As it is clear from the evidence that the applicant did tell Eddington and Denman about Kenny’s conduct the obvious question arises – if the incidents did not occur why would she tell Eddington and Denman they had ?
The Court should reject any suggestion that the applicant was “setting up” the first respondent so that she could make a claim of sexual harassment against him. There is simply no evidence to support such a position. The Court has had the benefit of observing the applicant in the way in which she gave her evidence and to form a view as to her ability to formulate and maintain a scheme involving a false claim of sexual harassment against her former employer for the purpose of some financial gain.
The evidence of Mr Kenny with regard to the incidents of sexual harassment was one of outright and indignant denial. The Court may recall that Mr Kenny’s evidence about the restaurant was that he did not invite the applicant – she insisted on being taken to lunch for her birthday and he complied with this request. Such ready compliance seems to be at odds with a man who also stated that he rarely goes out to lunch.
Mr Kenny also stated that he had invited Mr Eddington to join them for lunch. Given that the lunch took place following a visit to a bank in Parramatta, it would be most curious that Eddington would be invited given that he was not involved in the visit to the bank.
For reasons which are set out below, the Court is asked to adopt the evidence of the applicant in respect of the incidents of sexual harassment. Mr Kenny’s evidence was clearly unreliable on a number of points and as such, his denial of conduct, which would clearly amount to a breach of the SDA, should not be accepted as truthful.
The second component of the case, is the incident of 7 March 2002, when the applicant says Neil Kenny verbally and physically abused her. The incident she says was the culmination of his adverse reaction to (a) being advised that she was pregnant; and (b) the applicant seeking approval of maternity leave for three months commencing in June of that year.
The events leading up to 7 March may be summarized as follows:
On 18 February 2002 the applicant attempted to set up meeting with the first respondent to advise him that she was pregnant and was seeking a period of maternity leave. The applicant had already made inquiries with the Department of Industrial Relations as to her rights and entitlements. The first respondent was unavailable or unwilling to meet with the applicant on that day.
On 19 February 2002 the applicant handed the first respondent a letter – a letter sighted by Denman and Eddington and initialed to that effect, seeking maternity leave. The first respondent agrees that he received this letter.
On or about 20 February, the applicant is directed by Ms Joanne Kenny (wife of the first respondent) to change the towels in the men’s toilets – a task she had never previously been required to undertake.
On 20 February 2002 the applicant asserts that there was an exchange between herself and the first respondent, which clearly showed that he was unhappy about the applicant proceeding on maternity leave.
On 25 February 2002 the first respondent arranged a meeting with the applicant. Also in attendance at this meeting was Mr Barry Robinson. This meeting became heated with the applicant asserting that the first respondent threatened to terminate her employment immediately.
The full body massage
Mrs Ho says that after the lunch Mr Kenny came to her office and asked her to take her clothes off so that he could give her a full body massage. She says that he told her that he would lock the door so that no one would be able to come in. She says that she rejected this advance. According to Mr Kenny this incident simply did not happen.
Under cross-examination Mr Eddington admitted that Mrs Ho had reported not only her version of events at the lunch but also Mr Kenny’s invitation to give Mrs Ho a full body massage. He was dumbfounded and did not know what to do. I accept his evidence that he did not believe Mrs Ho. There were good reasons why Mr Eddington should disbelieve Mrs Ho. The proposition that Mr Kenny would have an employee strip naked in the workplace for a full body massage during working hours while other employees were about on its face lacks plausibility, even if the door was locked. Mr Kenny presents as a conservative, restrained and rather prim and proper man. The proposition Mrs Ho related to Mr Eddington would have seemed completely out of character for Mr Kenny. I find it was. I find that it did not happen. I find that Mrs Ho, probably dwelling on her perception of the lunch when she returned from it, lapsed into a fantasy. In her mind the fantasy was real. But it was not real.
Likewise, Mrs Ho’s belief of subsequent, unparticularised sexual suggestions from Mr Kenny are figments of her imagination. She believes that the propositions stopped because she asked Mr Kenny to stop them. It is more likely, however, that her belief in these fantasies waned when there was no event which could sustain them. Likewise, I reject Mrs Ho’s account of staff having sex at the workplace and spending their days viewing pornographic material. The proposition that Mr Kenny actively encouraged his staff to spent their working days in some kind of latter day Sodom and Gomorrah is ridiculous.
The Parkroyal invitation
On Mrs Ho’s account, in May 2001, Mr Kenny asked her to go with him to the Parkroyal Hotel at Parramatta so they could “make love”. Mrs Ho says that she did not know what the Parkroyal was so she asked Mr Eddington about it. She states that while she was talking to Mr Eddington about it, Mr Kenny walked into the room and Mr Eddington made up a story about sorting out a purchase order problem. She says that she went back to her office very upset and telephoned Mr Nick Denman to tell him about the incident. She says that Mr Denman talked her out of taking the issue further.
Mr Kenny recalls seeing Mrs Ho in Mr Eddington’s office but says that it was Mrs Ho who claimed that she was trying to sort out a purchase order problem. He denies the alleged invitation to go to the Parkroyal Hotel was given. His account is corroborated by Mr Eddington whose evidence I accept as truthful. He confirms that Mrs Ho reported to him the alleged invitation and that he thought that if there was any truth in the allegation Mrs Ho would have said something to Mr Kenny about it in his presence. He formed the view that the allegation was untrue when Mrs Ho made up the story about the problem with the purchase order.
It was a pity Mr Eddington did not raise the issue himself with Mr Kenny. Mr Eddington is an honest man but not a very well informed one, when it comes to dealing with sexual harassment issues. The allegation that Mr Kenny had invited Mrs Ho to the Parkroyal Hotel is on its face plausible and should have been taken seriously by Mr Eddington. If, at that point, Mr Kenny had had a continuing romantic interest in Mrs Ho it would have been a plausible thing for him to do. If Mrs Ho was rejecting an unwelcome sexual advance, she was looking to Mr Eddington for help in bringing the issue out into the open and he did not understand properly what his role was. If, on the other hand, the invitation was a further figment of Mrs Ho’s imagination, the issue should nevertheless have been confronted by Mr Eddington. Either Mrs Ho or Mr Kenny needed to be required to face reality and Mr Eddington missed an opportunity.
Mrs Ho also confided the alleged invitation to go to the Parkroyal with Mr Denman on the same day. Mr Denman confirms this. He said that he “switched off” because Mrs Ho had asked him to come to her office to deal with a computer problem and he did not want to hear about her personal issues. His evidence was that Mrs Ho had told him about other alleged personal problems and he did not want to hear about any more such personal issues. Again, this was a missed opportunity. The issue needed to be brought out into the open either to deal with an issue of sexual harassment or to force Mrs Ho to confront a delusional fantasy.
On balance, I am not satisfied that the alleged incident recounted by Mrs Ho occurred. While, considered in isolation or by reference to the earlier lunch, it is plausible that Mr Kenny might have asked Mrs Ho to go to the Parkroyal Hotel (and her evidence that she did not know what the Parkroyal Hotel was adds some weight to this plausibility) considered in the light of my findings concerning Mrs Ho’s fantasies about Mr Kenny’s advances to her, it would be unsafe to conclude that Mr Kenny ever made the invitation.
The Queensland trip
On Mrs Ho’s account, during the second week of November 2001, Mr Kenny invited her to go to the car races in Queensland with him. He allegedly said that he would rather go alone than with his wife. The implication is that he would have rather gone with Mrs Ho than with his wife. Mr Kenny denies the invitation as recounted by Mrs Ho but says that his trip to Queensland to attend a motor car race in November 2001 was well known to staff as he extended invitations generally to staff to go to car race meetings that he was attending. I find that in November 2001 Mr Kenny did speak to Mrs Ho about going to the race in Queensland but it was not a sexual advance. If (contrary to that finding) Mr Kenny said that he would rather go with Mrs Ho than with his wife it was not an unwelcome sexual advance. Once again, Mrs Ho, in her mind invented a fantasy surrounding the invitation based upon her belief in Mr Kenny’s romantic interest in her.
Conclusion as to sexual harassment
I conclude that although Mr Kenny was attracted to Mrs Ho, he made no overt sexual advances to her. For her part, Mrs Ho was flattered by Mr Kenny’s interest and developed an elaborate romantic fantasy around it. This cannot be explained on the basis of Dr Luong’s diagnosis of a major depressive disorder consequent upon PTSD (even if that diagnosis is correct). It can be explained by Dr Robertson’s diagnosis of Mrs Ho having a narcissistic and histrionic personality. I consider Dr Robertson’s opinion on that point more reliable than that of Dr Luong. It took a long time for Dr Luong to draw from Mrs Ho her accounts of sexual harassment. He put this down to cultural reticence but that does not sit well at all with the many revelations Mrs Ho made to her work colleagues about personal issues. Indeed, the evidence of Mr Eddington and Mr Denman indicates that Mrs Ho’s efforts to confide in work colleagues went beyond what might be considered normal or appropriate, even in an open and frank cultural environment. Dr Luong believed that he was drawing from Mrs Ho an accurate history that had been suppressed. There had been no suppression earlier. On the contrary, Mrs Ho had been only too willing to reveal details to Mr Eddington and Mr Denman.
By the time Dr Luong saw Mrs Ho she had been traumatised (which may have caused her to suppress her former thoughts), but the cause of that trauma was not sexual harassment. It was the shattering of the fantasy which Mrs Ho had created. The memories that Dr Luong took such trouble to draw from Mrs Ho were not memories of real events, but memories of that shattered fantasy, darkened by her realisation that Mr Kenny had rejected her, and that she had lost her employment. I accept Dr Robertson’s evidence as to Mrs Ho’s personality. I place emphasis on Dr Robertson’s assessment of Mrs Ho having a narcissistic/histrionic personality. His diagnosis of a mild adjustment disorder is less significant, as it relates to the consequences of the termination of Mrs Ho’s employment, rather than the earlier events in that employment. I do not rule out the possibility that Dr Luong’s diagnosis of PTSD is correct, as Mrs Ho may be more susceptible to that condition than a normal person. However, if Mrs Ho does have PTSD, it was not caused by sexual harassment.
Sex and pregnancy discrimination
There are different tests for direct and indirect discrimination. When direct discrimination is alleged the test is whether by reason of one of the prescribed characteristics the alleged discriminator has treated the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person without that characteristic. This requires the Court to identify a comparator and then to determine whether the aggrieved person has been treated less favourably.
In the case of indirect discrimination the test is quite different. Indirect discrimination occurs where the employer imposes an unreasonable condition, requirement or practice that has or is likely to have the effect of disadvantaging persons who have the prescribed characteristic – sex, marital status or pregnancy. There is no need to inquire if the aggrieved person is being less favourably treated than a comparator. The SDA provides that indirect discrimination does not occur where the imposition of the condition, requirement or practice is reasonable in the circumstances.
Mrs Ho claims that after she revealed to Mr and Mrs Kenny that she was pregnant she was discriminated against by being required to undertake the demeaning task of changing towels in the men’s washroom and being refused maternity leave. This is a claim of direct discrimination. Even on their own accounts, Mr and Mrs Kenny were surprised by Mrs Ho’s pregnancy (she had indicated to them beforehand that she did not intend to become pregnant) and I find that they were annoyed by it. Mr Kenny runs a small business and maternity leave obligations are no doubt an inconvenience he could do without. Mrs Kenny, having only recently reduced her involvement in the workplace, would have to increase it again. Mrs Kenny admits that when first told by Mrs Ho that she was pregnant she reacted inappropriately. I accept that she later apologised. It was probably unfortunate that this coincided with Mrs Kenny asking Mrs Ho to change the towels in the men’s washroom. Mrs Kenny had no power of direction over staff and Mrs Ho took offence to the request. Mrs Kenny’s demeanour in the witness box was somewhat haughty and her position as Mr Kenny’s wife probably made the request difficult to reject to her face. Although Mrs Kenny had no actual authority she exercised ostensible authority, with the knowledge and consent of the respondents.
Dr Luong gave evidence of Mrs Ho coming from an intensely class conscious society leading to her being humiliated by being asked to do a menial task. Dr Robertson’s analysis leading to a conclusion of Mrs Ho having narcissistic and histrionic traits of personality only adds to the conclusion that Mrs Ho took unspoken offence at the request. However, I find that the request by Mrs Kenny was not made because Mrs Ho was pregnant. It was made because the job needed doing and it was a job that had always been done by “one of the girls”. Mrs Kenny asked Mrs Ho to change the towels in the men’s washroom not because she was pregnant but because she was a woman. The request would not have been made if Mrs Ho had been a man. Appropriate comparators in the circumstances are the male employees in the workplace. They were not and would not have been asked to undertake this menial task. It follows that in making the request to Mrs Ho that she change the towels in the men’s washroom, Mrs Kenny treated Mrs Ho less favourably than a man would have been treated in the same circumstances.
Mrs Ho’s personality made her especially susceptible to anxiety concerning her pregnancy and her request for maternity leave. Mrs Kenny had reacted poorly when she was told. Mr Kenny reacted unduly officiously in requiring a medical certificate without delay. Mrs Ho believed (incorrectly as it turned out) that she was being refused maternity leave and that she would lose her job. Only one other employee in the previous 10 years had asked for maternity leave (Mrs Lui) and she had left employment with the company and subsequently been re-employed after an extended gap of employment. It is not surprising, given Mrs Ho’s personality and the adverse reaction by Mr and Mrs Kenny to news of her pregnancy that Mrs Ho acted strangely. She felt the need to obtain proof of her entitlements from the NSW Department of Industrial Relations. That should not have been necessary. The meeting on or about 25 February 2002 between Mrs Ho, Mr Kenny and Mr Barry Robinson should not in ordinary circumstances have been necessary. It is not surprising that Mrs Ho felt under pressure about her maternity leave. Consistently with her personality and that perception of pressure, Mrs Ho overreacted. She now saw Mr Kenny as hostile to her, in stark contrast to her earlier fantasy of his romantic attachment. In her distress, Mrs Ho blurted out her allegation of Mr Kenny “talking dirty” to her.
Mr Robinson jumped to the conclusion that Mrs Ho was trying to set up an unfair dismissal claim. He displayed a lack of insight. So did Mr Kenny. Mr Robinson concluded correctly that the allegation had no substance but he failed to consider the pressure that Mrs Ho had been put under and her susceptibility to that pressure. Mr Kenny had not denied Mrs Ho maternity leave and neither had Mrs Kenny. However, they had made clear that Mrs Ho’s pregnancy was unwelcome and that Mrs Ho would be required to prove her entitlement to maternity leave. Mrs Ho was, because of her pregnancy, under financial pressure and Mr Kenny (in particular) had put her under emotional pressure over her maternity leave.
There were two reasons for the meeting between Mr Robinson, Mr Kenny and Mrs Ho on 25 February 2002. One was the issue of Mrs Ho’s request for maternity leave. The other was the sudden change in Mrs Ho’s work performance. Only the first purpose was made known to Mrs Ho in advance. I find that Mrs Ho’s work performance had deteriorated after she became pregnant. I find that her decline in work performance was contributed to by the negative reaction she got from Mr and Mrs Kenny about her pregnancy. Even if Mrs Ho had been a normal person, Mr and Mrs Kenny handled the situation poorly. Mrs Ho is not, however, a normal person. She suffers from a psychiatric condition. Mr and Mrs Kenny were not to know that but the combination was disastrous.
I find that in subjecting Mrs Ho to the meeting on 25 February 2002 the respondents discriminated against Mrs Ho on account of her pregnancy. The appropriate comparators are employees of the first respondent who were not pregnant but who had a condition requiring leave on the production of a medical certificate. It is hard to imagine an employee requiring leave on production of a medical certificate being summoned to a meeting before an independent witness to discuss their need for leave and an asserted decline in work performance and attitude since the medical condition became known. I find that such an employee would not have been subjected to an analysis of their work performance or been summoned to a meeting with an independent witness to justify a request for leave. By subjecting Mrs Ho to the meeting the respondents breached s.7(1)(a) of the SDA.
While the events of 7 March 2002 were of major importance to the parties in that they resulted in the termination of Mrs Ho’s employment, I do not regard them of significance either in relation to the claims of sexual harassment or sex and pregnancy discrimination. It is common ground that there was an angry altercation between Mrs Ho and Mr Kenny on that day. The cause of that altercation was where Mrs Ho had chosen to park her car and her defiance of his authority. That issue is irrelevant to the claims of sexual harassment and discrimination. Mrs Ho claims that she was assaulted. She made a complaint to the police which the police have not chosen to take further. It was open to Mrs Ho to seek an apprehended personal violence order but she has not done so. Mr Kenny may have assaulted Mrs Ho on that day (even if he did not touch her it seems clear that Mrs Ho was put in fear by his words and actions) but that is beyond the scope of these proceedings. If Mr Kenny assaulted Mrs Ho she has a remedy in tort. She has not sought that remedy in this Court although she could have done so under the Court’s accrued jurisdiction. If Mr Kenny assaulted Mrs Ho it was not because she was a woman or because she was pregnant. It was because Mr Kenny had been made very angry by the incident over Mrs Ho’s car. Mrs Ho was dismissed from her employment on that day. However, she was not dismissed because she was a woman or because she was pregnant. She was dismissed because of the angry altercation between her and Mr Kenny and because she had made a complaint to the police which Mr Kenny believed was a false complaint. Mr Kenny, on advice, took the view that the employment relationship had irretrievably broken down. Mrs Ho may have a remedy for unfair dismissal arising out of those events but, again, that is beyond the scope of these proceedings.
Conclusion as to discrimination
Mrs Ho was discriminated against by Mrs Kenny by being requested to change the towels in the men’s washroom. This was a breach of s.5(1)(a) of the SDA. Mrs Kenny had ostensible authority from the respondents to act as she did and the first respondent is liable for her action. The respondents also breached s.7(1)(a) by subjecting Mrs Ho to the meeting on 25 February 2002. The other claims of discrimination made by Mrs Ho have not been substantiated.
Damages
The request made by Mrs Kenny to Mrs Ho that she change the towels in the men’s washroom, while discriminatory, was trivial. It does not sound in damages. Mrs Ho took offence to the request but her reaction was an over-reaction. It was influenced by her personality disorder and by her cultural background. Her reaction was not reasonably foreseeable by Mrs Kenny or by the respondents.
The breach of s.7(1) of the SDA does sound in damages. Mrs Ho has not suffered any economic loss by reason of that breach. She was dismissed from her employment shortly afterwards but the dismissal was unrelated to the breach. Mrs Ho was distressed by the reaction of Mr Kenny and his wife to her pregnancy. She was exceptionally distressed by the meeting on 25 February 2002. Again, her reaction was extreme and that may be explained by her personality disorder. Mrs Ho’s disorder could have been a contributing factor to her present adjustment disorder, or her PTSD, whichever it is. However, it was not reasonably foreseeable that Mrs Ho’s reaction would be so extreme. Mrs Ho should receive an award of damages for her non economic loss by reason of the breach of s.7(1) but the award should be moderated to take account of her extreme and unforeseeable reaction. In Cooke v Plauen Holdings [2001] FMCA 91 I awarded the sum of $750 as general damages in somewhat similar circumstances to the present. I will award $1,000 by way of general damages inclusive of interest up to judgment.
I will not require the respondents to make an apology. Neither will I require Mr Kenny to attend an anti-discrimination course. Most of Mrs Ho’s claims I have rejected. The breaches I have identified are in themselves relatively minor. The events leading up to these proceedings and the proceedings themselves have been no doubt distressing for all parties. The whole affair has been extremely unfortunate and I do not think an apology would give Mrs Ho any significant comfort, given that most of her claims have been rejected. The legal proceedings in this judgment are probably more instructive to Mr Kenny than any anti-discrimination course would be. Mr Eddington and Mr Denman would be assisted by being given information about discrimination and harassment issues and their responsibilities. That information is readily available from the Human Rights and Equal Opportunity Commission. I do not need to make any order about it.
I will hear the parties as to costs. Given the length and complexity of this judgment and the limited success of the applicant, representatives will probably need some time to consider the judgment and the costs implications of it.
I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 May 2004
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