Hsu v BHB Australia Pty Ltd trading as Far West Consulting

[2007] NSWADT 125

CITATION:	Hsu v BHB Australia Pty Ltd trading as Far West Consulting & anor [2007] NSWADT 125
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Chia-Wen (Priscilla) Hsu FIRST RESPONDENT BHB Australia Pty Ltd trading as Far West Consulting Engineers SECOND RESPONDENT Barry Barakat
FILE NUMBER:	051111
HEARING DATES:	17, 18 and 19 May 2006, 17 July 2006 and 27 September 2006
SUBMISSIONS CLOSED:	15 December 2006
DATE OF DECISION:	14 June 2007
BEFORE:	Grotte E - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Antonios Z - Non Judicial Member
CATCHWORDS:	Sex Discrimination - In work - Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165 Briginshaw v Briginshaw (1938) 60 CLR 336 Waters v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPLICANT In person with A Platfoot, agent RESPONDENTS E Brus of counsel instructed by Dooley and Associates
ORDERS:	i) The Complaints are dismissed.; (ii) No Order as to Costs.

1 On 8 February 2005 the Anti Discrimination Board (ADB) received a complaint alleging discrimination in employment on the grounds of sexual harassment and sex discrimination in employment from Ms Chia-Wen (Priscilla) Hsu (the Applicant) against BHB Australia Pty Ltd t/as Far West Consulting Engineers (the First Respondent) and Mr Barry Barakat, its Managing Director (the Second Respondent). Further information regarding the complaint was received by the ADB on 15 March 2005.

2 Ms Hsu graduated with a civil engineering degree in Cape Town, South Africa in 2001. She worked as a junior structural engineer in South Africa before migrating with her family to Australia in February 2002. She looked unsuccessfully for work as a structural engineer in Australia. In 2003 she studied Mathematics at the University of Technology and in 2004 she completed a Graduate Diploma of Education at the University of New South Wales, because she had been unable to obtain work as an engineer.

3 On 20 January 2005 she was interviewed by the Second Respondent, Mr Barakat, the Managing Director of the First Respondent, for the position of AutoCad draftsperson and she commenced work on a trial basis on 24 January 2005. She alleged that up until her last day of work on 31 January 2005 she was sexually harassed and discriminated against on the ground of her sex by Mr Barakat, because the Second Respondent made it clear to her that her progress and future at the company to a large extent depended on her personal attitude and response to his demands. Ms Hsu alleged that during the trial week the Second Respondent required her to stay late at work and engage in long personal chats with him and to attend training after hours on Australia Day and on Saturday 29 January 2005 when he touched her inappropriately.

4 Ms Hsu alleged as a result of the harassment she resigned from her employment.

5 Ms Hsu alleged that on Saturday 29 January 2005 she attended a group training session at the First Respondent’s premises. She alleged that following the group training, which finished about midday, she was asked to bring the project she had been working on to Mr Barakat’s office to discuss it.

6 Ms Hsu alleged that on that day she and Mr Barakat spoke for about six hours. During this time he did not mention the project but he told her he really enjoyed talking to her and that he really liked her. She alleged he rubbed her back while placing his other hand on her lap. She alleged he pinched her face and asked her whether she trusted him. She alleged he told her he would not hurt her.

7 Ms Hsu alleged Mr Barakat made her feel so uncomfortable that she finally stood up and told him she would always respect him but they would never be friends. She alleged he told her she misunderstood him. He then suggested they go somewhere to continue their conversation. She followed him to the waterside in her car and he came to her car where they spoke for another hour. She alleged Mr Barakat told her he did not have to go home but could stay there with her for the whole night. She alleged she was bitten by mosquitoes and was able to excuse herself and go home about 8:40pm.

8 Ms Hsu alleged the following Monday, Mr Barakat asked her to come to his office. She signed a work agreement, which stated she was to be appointed as a casual worker. Under the agreement she had to work a 38 hour week and attend compulsory training at any time. Ms Hsu alleged Mr Barakat again asked her to stay beyond 7pm. She alleged that she did not feel safe and excused herself saying she had to attend supper with her parents. Ms Hsu alleged Mr Barakat later telephoned her workstation and asked her to again come to his office. She alleged he told her he could write a letter to her parents regarding the training. Ms Hsu alleged he scanned her from head to toe with a strange smile on his face. Ms Hsu alleged she cried on her way home from work that day. She claimed she felt too ashamed to tell her parents Mr Barakat touched her. When she finally did tell them, they were shocked and consulted a solicitor. She followed the solicitor’s advice and reported the matter to the police and the ADB.

9 Ms Hsu alleged she usually arrived at work before 8:30am and left work after 9:00pm. Mr Barakat asked her to attend training on Australia Day. She alleged that he taught her about electrical engineering at the beginning of each session but he spent most of his time with her talking about personal matters. He told her he needed someone to talk to and his wife could not understand.

10 Ms Hsu alleged Mr Barakat told her that if she held onto his hand she would succeed, but if she let go she would fall. She alleged that he told her if she refused training three times he would not train her. She alleged she felt compelled to agree to his suggestions of training to keep her job. Ms Hsu alleged Mr Barakat told her he only slept 3 to 4 hours a day. She alleged that she felt pressured to work long hours but could not because she needed her sleep. She always missed out on supper with her parents because of the requirement to stay late. Ms Hsu alleged her parents began to suspect Mr Barakat’s intentions.

11 Ms Hsu alleged Mr Barakat told her he could read people and he insisted she had problems and to tell him about them. She alleged he told her he had the power to find out anything she tried to hide from him from the day she was born. He told her he knew whether she was in the office or not. Ms Hsu alleged she felt trapped because Mr Barakat told her loyalty was important to him. He told her of his disappointment when another female employee he trained left his employment. She claimed the word ‘loyalty’ bothered her and she wondered whether it was the right job for her.

12 Ms Hsu alleged Mr Barakat asked to meet with her on Sunday 30 January, the day following the Saturday meeting. She alleged he told her he would call her. She alleged she told him her parents would be unhappy if he did that and she refused to meet him on Sunday.

13 Ms Hsu alleged that on Tuesday 1 February 2005 and Wednesday 2 Februay 2005 Mr Barakat called her at least 7 or 10 times obsessively and that his true intention was not to help her become an engineer but to manipulate her to have sex with him. Ms Hsu denied there were any complaints regarding her behaviour during the time she spent with the Respondent.

Response to the Complaint

14 Mr Barakat denied the allegations.

15 Mr Barakat interviewed Ms Hsu for the position of AutoCad draftsperson on Thursday 20 January 2005. She was advised she was being offered a training and evaluation period of 5 days from Monday 24 January 2005 to Friday 28 January 2005 to enable him to assess her suitability for the advertised position. On 31 January 2005 Ms Hsu was offered in writing a casual traineeship drafting position for a period of 12 weeks from 31 January 2005 to 22 April 2005. Ms Hsu accepted this offer on 31 January 2005.

16 Mr Barakat stated that, during the period in question, he gave Ms Hsu some individual training, which gave him an opportunity to evaluate her skills and abilities. He denied asking her to stay back beyond ordinary office hours for any reason. Mr Barakat stated he left the office between 6:30pm and 7:30pm. He denied discussing anything of a personal nature with Ms Hsu. Any discussions with Ms Hsu related to her work history, education, skills and abilities. Mr Barakat denied having any discussions with Ms Hsu, which exceeded 20 minutes.

17 Mr Barakat stated he told Ms Hsu on 28 January 2005 that she did not have the relevant experience for the advertised position of AutoCad draftsperson, but he was willing to offer her a position of employment as a trainee draftsperson to commence on Monday 31 January 2005. Mr Barakat said he asked Ms Hsu to attend a training session on Saturday 29 January 2005. At the completion of the training session Mr Barakat stated Ms Hsu asked him if she could ask him some questions about the training. They sat in his office to discuss the training session as requested. Suddenly, Ms Hsu began to discuss her grandfather’s death and began to cry, saying she missed him. He offered her some tissues.

18 Mr Barakat denied the conversation asserted by Ms Hsu and stated the discussion only lasted 20 minutes. He denied touching her in any way and denied the comments attributed to him by her. He denied staying at his office till 8:40pm and denied asking to see her on the following Sunday.

19 Mr Barakat stated during this conversation Ms Hsu asked him to complete a Centrelink document regarding a declaration of income earned up to and including Tuesday 1 February 2005. Mr Barakat competed the form stating there were only two days of income, being 31 January 2005 and 1 February 2005. On Monday 31 January Mr Barakat provided Ms Hsu with a training program for the 12 week period. At about 5:30pm Ms Hsu attended Mr Barakat’s office and asked him if he would like to discuss the sample project on which she had been working. Mr Barakat told her if he did not have time that day, he would discuss it with her the following day. She attended his office again at 5:45pm and said she had to leave to attend a special dinner with her parents. He agreed she could leave. Ms Hsu did not attend work the following day. She did not call to advise the Respondents of her whereabouts. Mr Barakat attempted to contact her on three occasions without success on the Tuesday and the Wednesday when again she failed to come to work. On Thursday the Second Respondent received a letter of resignation from Ms Hsu.

Tribunal Proceedings

20 Ms Hsu’s complaint was unable to be conciliated by the ADB and was referred to the Administrative Decisions Tribunal (the Tribunal) at the request of Ms Hsu.

21 The Tribunal conducted a hearing into the complaint over a period of five days. In addition to documentary material filed in the proceedings, the Tribunal heard oral evidence from Ms Hsu, her mother and father, Hui Fen Lin Hsu and Chuan-Shu Hsu and Jacquelyn Hsu, Ms Hsu’s sister. The Tribunal also heard oral evidence from the Second Respondent, and several of the First Respondent’s employees, Mr Bruno Lara, Ms Sandhya Pillay and Ms Anne Younan as well as Charlie Barakat, Mr Barakat’s son.

22 The Tribunal does not intend to reproduce in this decision all of the oral evidence taken and documentary evidence filed. It is sufficient to state that it has considered all of the relevant evidence before it in reaching its conclusion. The relevant evidence is dealt with in the body of this decision.

Reasons for the Decision

23 The Tribunal notes Ms Hsu’s complaint throughout the proceedings was framed as one of sexual harassment, although the complaint also included an allegation of sex discrimination. In the written submissions provided by Ms Hsu’s agent, Mr Platfoot, to the Tribunal after the conclusion of the oral evidence, an allegation of indirect sex discrimination was raised. It was submitted as follows:

“Loyalty was in fact a euphemism to acceptance of the behaviour of the Second Respondent and in particular his comments and behaviour that had sexual overtones. It is argued that such requirements linking employment and opportunity to acceptance of such behaviour is not permitted under the relevant Act. It is argued that such requirements especially the suggestive tone and comments would not apply to a hypothetical male drafter at Far West Consulting Engineers at that time”.

24 It was submitted on behalf of Ms Hsu that Mr Barakat’s comments to and requests of Ms Hsu clearly indicated her progress and future at the company to a large extent depended on her personal attitude and response to demands of the Second Respondent. It was submitted this amounted to indirect discrimination in contravention of section 24(1)(b) of the ADA.

25 Section 22B(1) of the ADA prohibits an employer from sexually harassing and employee or a person seeking employment with the employer.

26 Section 22 of the ADA defines sexual harassment as follows:

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

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

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances , would have anticipated that the other person would be

(c) offended, humiliated or intimidated.

27 Section 25 of the ADA prohibits an employer from discriminating against a person on the ground of sex in determining who should be offered employment, in the terms on which the employer offers employment and in the arrangements the employer makes for the purpose of determining who should be offered employment.

28 Section 24 of the ADA defines sex discrimination as follows:

(1) A person discriminates against another person (“the aggrieved person”) on the ground of sex, if on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(1A) For the purposes of subsection (1)(a), something is done on the ground of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex….

29 The onus is on Ms Hsu to establish that she was sexually harassed by her employer or potential employer within the meaning of the relevant legislation and that she was subjected to indirect discrimination on the ground of her sex.

30 In determining whether the complaint of sexual harassment and sex discrimination has been established in this case, the Tribunal has applied the civil standard of proof which is set out in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw’s case).

31 In Briginshaw’s case Dixon J stated:

“When the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality”.

32 Dixon J also stated:

“It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences.

33 The Tribunal is required to be reasonably satisfied the alleged conduct occurred on the basis of probative evidence. In reaching its decision the Tribunal has given careful and cautious consideration to all of the relevant evidence before it and has considered the gravity of the allegations as well as the serious consequences of any adverse findings against the First and Second Respondents.

34 To prove indirect discrimination Ms Hsu needs to establish that she has been required to comply with a requirement or condition with which a substantially higher proportion of persons, who are of the opposite sex do comply or are able to comply, with which she cannot comply and which is not reasonable in the circumstances of the case. Each of these elements must be present in order to make out a case of indirect discrimination.

35 What constitutes the condition or requirement in a claim of indirect discrimination is a question of fact (Waters v Public Transport Corporation (1991) 173 CLR 349) and must be identified with some precision (Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165).

36 Ms Hsu identified the following condition or requirement:

(i) She was required to show “loyalty” to keep her job, that is, to acquiesce to Mr Barakat’s demands by accepting his behaviour which had sexual overtones.

37 It was submitted on her behalf that a hypothetical male drafting person employed by the First and Second Respondents does not have to comply with this requirement.

38 This submission is misconceived. The submission has misquoted the legislation and appears to have mixed direct discrimination and indirect discrimination. Indirect discrimination requires proving that a female has been required to comply with an unreasonable requirement, with which a substantially higher proportion of males do comply or are able to comply. Direct discrimination on the other hand, requires a comparison with a male in similar circumstances to determine the question of whether there has been less favourable treatment on the ground of sex.

39 The Tribunal notes Ms Hsu was not legally represented at the Tribunal hearing. However, it also notes Ms Hsu and her agent, Mr Platfoot, sought and obtained advice regarding the submissions from a duty solicitor from Legal Aid. The question of indirect discrimination was not specifically addressed in the evidence. There was no suggestion at any stage of the proceedings that indirect discrimination would be pleaded. Mr Barakat was not questioned about the requirement to attend training or the requirement to be loyal to the company in the context of indirect discrimination. There was no evidence of the kind to establish that a substantially higher proportion of persons of the opposite sex comply or would be able to comply with the requirement or condition and no evidence was led as to the reasonableness or otherwise of the requirement or condition.

40 The Respondents have not had an opportunity to address this claim of indirect discrimination. It is noted that neither Ms Hsu nor her agent has requested that further evidence be taken in this regard. It would be contrary to the principles of procedural fairness and natural justice to draw inferences from the evidence.

41 In any event, the Tribunal is satisfied that the claim of indirect discrimination as framed above is misconceived.

42 Having said that however, the Tribunal notes the requirement to be loyal to the company is enshrined in the First Respondent’s Code of Conduct and is something equally applied to all members of staff. Similarly, the requirement to attend training after hours applied to all staff, male and female.

43 It appears from the submissions that the complaint of sex discrimination is limited to the allegation of indirect discrimination. Accordingly, the Tribunal is not satisfied there is any evidence to support the allegation of sex discrimination and finds it not substantiated.

44 It was submitted on behalf of Ms Hsu that her evidence should be preferred because she was a credible witness and Mr Barakat was not. Submissions were made on behalf of Ms Hsu regarding the recruitment and interview process for the position applied for by her. There was no allegation of sexual harassment with respect to the interview or recruitment process. However, the Tribunal notes it was submitted on behalf of Ms Hsu the evidence given by Mr Barakat in this regard was inconsistent and contradictory thereby impugning his credibility. It was submitted the interview notes written by Mr Barakat were written long after the interview, generated to create a false impression of the conditions of employment of Ms Hsu with the Second Respondent. It was also submitted that Mr Barakat was deceitful in that he misled Ms Hsu regarding the position she was ultimately offered. She believed that she was applying for a drafting role but was only offered a trainee position. It was submitted therefore that Mr Barakat was not to be believed.

45 It was also submitted on behalf of Ms Hsu that she arrived at work by 8:30am and left about 9:00pm and that Mr Barakat’s evidence that she was not required to work a full day was not plausible and inconsistent with the evidence of Bruno Lara who told the Tribunal the requirement to work normal working hours applied to people on trial as well as regular employees. Reliance was placed on Macdonalds’ food receipts. Ms Hsu told the Tribunal that she ate at Macdonalds on her way home from work at the West Ryde BP service station because she missed out on the evening meal with her family. Ms Hsu’s family gave evidence that during the relevant week she came home very late and missed out on the evening meal. The Tribunal notes the time recorded on the Macdonalds’ receipts attached to Ms Hsu’s affidavit correlate closely to the time recorded in the sign in/sign out book completed by employees of the First Respondent, including Ms Hsu. Ms Hsu’s evidence however was that she often recorded her departure from the office at a later time, not at the time of leaving the First Respondent’s office. It was submitted this was because she forgot to sign out at the time because she was engaged in long hours of personal chatting with the Second Respondent. It was submitted this evidence supports Ms Hsu’s claim of sexual harassment, because the conduct occurred when she was engaged in these long after hours chats with Mr Barakat. It is noted there is no sign in/sign out time Recorded for Ms Hsu for Saturday 29 January 2005 nor is there any receipt for that day from Macdonalds.

46 It was submitted on behalf of Ms Hsu the evidence of Ms Pillay and Ms Younan is unreliable and of little probative value because of inconsistencies with the sign in/sign out book and internal inconsistencies. It was submitted Ms Hsu’s evidence should be preferred because it is plausible and supported by the sign in/sign out book, her parents’ and sister’s evidence and the Macdonalds receipts. It was submitted any suggestion she was not working hard during the trial period or that she did not stay late at the office should be disregarded.

47 The Tribunal notes Ms Hsu’s original claim that she remained at work until 9:00pm and her family’s evidence that she regularly arrived home at 10:00pm or 11:00pm are not supported by the sign in/sign out book kept by the Respondents to record the arrival and departure times of employees, which shows that on three days she left at 6:00pm and on one evening she left at 7:30pm. The entry for 25 January 2005 states “9:30am”. Ms Hsu stated that this must be “9:30pm” and not “9:30am” as written in the book because she recalled looking at the clock at the time of her departure. Ms Hsu’s claim that she was the last person to leave is also not supported by the sign in/sign out book, which shows for example on 24 January 2005 that Ms Hsu left at 6:00pm and that Ms Pillay left at 6:30pm and Mr Lara left at 7:00pm. On 27 January 2005 the entry shows that Ms Hsu left at 6:00pm and that “Amal” left at 7:48pm, “”Sandy” left at 6:30pm and “Lindsay” left at 7:49pm. According to the sign/sign out book the only day on which Ms Hsu left the latest was Friday 28 January 2005, when she signed out at 7:30pm. Ms Hsu’s oral evidence was that the times recorded by her in the sign in/sign out book did not accurately reflect the time she actually left. 6:00pm was often recorded by her the following day as being the nominal time she completed doing her technical work. She told the Tribunal this time was entered whenever she remembered to do so. Mr Lara also gave evidence to the Tribunal that he completed the sign in/sign out book sometimes at a later time when he remembered to do so.

48 Given the evidence of both Ms Hsu and Mr Lara the Tribunal is not satisfied the sign in/sign out book can be relied upon as a probative source of information regarding departure times of the Applicant. Therefore it is possible Ms Hsu left later than indicated in the book and that she ate at Macdonalds at the times recorded on the receipts, but it is equally possible that she occupied herself with other activities before arriving at Macdonalds. In this regard, the Tribunal notes Ms Hsu’s evidence that on 25 January 2005 after she stopped at Macdonalds to eat, she stopped at Coles at Chatswood to shop before going home.

49 Ms Hsu told the Tribunal she ate at Macdonalds in West Ryde on her way home because she missed having supper with her family, which was, according to the evidence of Ms Hsu’s mother, between 7:00pm and 8:00pm. The trip to Macdonalds took about half an hour on the way home from the office of the First Respondent, yet Ms Hsu arrived home almost two hours later, sometimes three. Ms Hsu’s claim is that the time recorded on the Macdonalds’ receipts is the correct time and that she left the office about half an hour before arriving at Macdonalds in West Ryde. The receipts from Macdonalds recorded which related to Ms Hsu show that on Australia Day she ate there at 3:47pm, on 25 January 2005 at 9:40pm, on 28 January 2005 at 7:57pm and on 31 January 2005 at 6:29pm. The receipt for Monday 24 January does not belong to Ms Hsu and so there is no time recorded for that day. The evidence of the Macdonalds’ receipts does not, in the Tribunal’s view, support Ms Hsu’s claim that she left the office every night of the week in question after 9:00pm. They also do not explain why she arrived home between 10 and 11pm every night of that week as asserted by her parents and sister given her evidence that the trip from West Ryde to Chatswood, where she lived with her parents, took about half an hour.

50 In any event, the evidence of the receipts alone does not establish Ms Hsu was sexually harassed by the Second Respondent. The receipts simply establish Ms Hsu purchased food ate at Macdonalds at West Ryde at the times recorded on the receipts.

51 Ms Hsu claimed from the first day Mr Barakat asked her the question “What time are you leaving?” and he asked her personal questions after everyone else left. She claims she felt pressured to stay back to make Mr Barakat happy. However Ms Hsu conceded in oral evidence that she was not directed by Mr Barakat to attend training on Australia Day. He asked her if she could come. She also conceded in oral evidence that she was never directed to stay late. Her evidence was that she felt she had to stay late to keep her job because Mr Barakat asked her “what time she was leaving?” She believed it was expected of her and all staff.

52 The Tribunal accepts however Ms Hsu perceived she was required to stay late and to attend training from comments made by Mr Barakat concerning loyalty and commitment. This view is supported by the First Respondent’s Code of Conduct, which was provided to Ms Hsu on 20 January 2005, the day of the interview. The Code of Conduct stipulates “loyalty to the company” and states that employees “should always act in the interests of the Company… not in our own interest or those of another individual”. This view is also consistent with Mr Barakat’s evidence to the Tribunal that he made himself available to his staff for questions after hours. It is also consistent with the impression Ms Hsu had that the First Respondent’s employees, including herself, were being monitored by security cameras. This is confirmed by the oral evidence of Ms Pillay when she told the Tribunal that “he just keeps an eye over all the employees, to see if they are working or just passing time”.

53 It is also confirmed by Mr Barakat’s own letter to Ms Hsu dated 3 February 2005 wherein he stated “Please note that our office is fully video monitored 24 hours seven (7) days a week”. Despite Mr Barakat’s oral evidence that the security camera system was only for security purposes on the weekends when no one was at the office, the Tribunal is satisfied that Ms Pillay’s evidence reflects the view held by the First Respondent’s employees regarding the security cameras.

54 The Tribunal accepts Mr Barakat required loyalty and commitment to his small family company from his employees. The Tribunal accepts he required the attendance of his employees at training outside work hours. However these requirements applied to all employees equally. The Tribunal also notes Ms Hsu’s concession in oral evidence to the Tribunal that she was not directed at any time during that week by Mr Barakat to stay late.

55 The Tribunal is satisfied numerous telephone calls were made to Ms Hsu’s home after 31 January 2005, but whether these calls were made by Ms Pillay, Ms Younan at the direction of Ms Barakat or Mr Barakat himself is not important, in the Tribunal’s view. It is legitimate for an employer to contact an employee to ascertain her whereabouts especially when the employee did not contact the employer to inform him of her whereabouts when she failed to turn up to work, having just signed a contract if employment. The Tribunal notes the telephone calls stopped when the First and Second Respondents received the letter of resignation from Ms Hsu’s solicitor. This, in the Tribunal’s view, confirms the interest in Ms Hsu by Mr Barakat was not personal but professional.

56 The Tribunal is not satisfied Ms Hsu has discharged the onus on her to prove the allegations of sexual harassment. The acceptance of the abovementioned matters by the Tribunal does not lead necessarily to a conclusion that the sexual harassment occurred. The mere fact that she remained late at work, that Mr Barakat insisted on loyalty from his staff and insisted on training her does not prove that she was sexually harassed.

57 The Tribunal found Ms Hsu’s oral evidence vague and lacking in detail. There were discrepancies in her evidence. Mr Barakat and Ms Hsu give different versions of what happened on Wednesday 26 January 2005. Ms Hsu initially stated she was required to attend training on that day by Mr Barakat but conceded at the hearing that she was not directed to do so. Mr Barakat and Mr Lara claimed that Ms Hsu asked to be included in the training. Mr Barakat said he left the office between 12 and 12:30pm, whereas Ms Hsu said training finished between 12 and 1:00pm and she left after some discussion with Mr Barakat at about 3:30pm. There is no recorded sign in/sign out time and the Macdonalds receipt for that day states 15:47 (3:47pm) which gives some support for Ms Hsu’s claim. Charlie Barakat, Mr Barakat’s son, on the other hand gave oral evidence that his father visited him at his house that day arriving between 12 and 1:00pm. He said that it takes about 10 minutes to get to his house from the office. Despite being challenged under cross examination, Charlie Barakat was steadfast in his evidence. Of course, Charlie Barakat is the son of the Second Respondent and is likely to give evidence that is supportive of his father but the Tribunal has been given no reason to doubt his evidence.

58 Mr Barakat and Ms Hsu also give different versions of what happened on Saturday 29 January 2005. They agree there was training that day. She claims she arrived at 9:00am but did not sign in as she was not told she was required to do so. It was not a work day. Other staff members were in attendance. Ms Hsu stated that training finished at about noon and she tried to leave but Mr Barakat asked her to come to his office. She claims that she spent about 6 hours talking to him there, during which time he sexually harassed her and then afterwards went to the waterside with him. Mr Barakat denied Ms Hsu’s version of events stating that his meeting with her only lasted about 20 minutes. His evidence was was that after the training he left the office around 4:30pm to carry out site inspections. He relied on entries in his diary. He said he then had dinner at City Extra in Parramatta and then drove home. Mr Barakat gave inconsistent evidence regarding the site inspections. Initially he said they were urgent and then he said they were not. First he said the site inspections he was to visit were in his diary and then he said they were not in his diary but in his notebooks, which were not produced to the Tribunal. Secondly as stated in paragraph 45 of this decision, Mr Barakat’s evidence regarding the interview process was questionable. As was his evidence regarding the security system in the office. Initially, his evidence in his letter the Applicant was that the office was monitored but later his evidence was that the security system was only for insurance purposes and was only activated on the weekends when no one was around. The Tribunal notes the submission made on behalf of Ms Hsu that the security tapes were deliberately destroyed. There is no evidence before the Tribunal to this effect and the Tribunal rejects the submission. Overall, however, the Tribunal was not impressed with Mr Barakat’s evidence because of the inconsistencies in his evidence.

59 Having said that however, the Tribunal was equally not impressed with the evidence given by Ms Hsu. Ms Hsu claimed she spent six hours with Mr Barakat, but, upon questioning, gave very little detail as to what was covered in that time other than an exchange about making coffee, personal questions regarding her grandfather and the allegations of touching her cheek and rubbing her back and placing his hand on her lap as well as other personal exchanges. She also claimed they spent another one to two hours by the waterside. Again little detail was given as to what was discussed during this time, despite direct questioning by Mr Barakat’s Counsel. These allegations were steadfastly denied by Mr Barakat even under cross-examination. The Tribunal formed the view that Ms Hsu exaggerated the events to suit her claim of sexual harassment. An example of this is the claim that she left the office every night after 9:00pm, a claim not supported by the Macdonalds receipts. Another example of exaggeration is the claim that she was required to stay late. The evidence disclosed that there was no specific direction to her by Mr Barakat to stay late.

60 It was submitted that Ms Hsu should be preferred because she has the support of her sister’s evidence, Ms Jacquelyn Hsu. However Ms J Hsu’s alleged knowledge of events was based on what she was told by her sister. Although Ms J Hsu claimed that her sister spoke to her every night after she came home, her evidence to the Tribunal was that she was not told about any alleged sexual harassment until after the Applicant left the First Respondent’s office on 31 January 2005. Indeed, Ms J Hsu told the Tribunal the alleged details of the alleged sexual harassment were only made known to her once she began to help the Applicant write up her complaint.

61 Although the Tribunal is not bound by the rules of evidence and pursuant to section 73(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) is able to inform itself on any matter as it thinks fit, the evidence must still have probative value. Hearsay evidence is not generally excluded but in the circumstances of this case the Tribunal gives little weight to the evidence of Ms J Hsu because it is of the view that it has little probative value, because Ms Hsu’s statements supporting her sister were based on an assessment by her that Mr Barakat “was a weird guy”.

62 The Tribunal accepts Mr Barakat considered the Applicant had good qualifications in engineering and wanted to take advantage of her qualifications. He formed the view that she lacked experience in AutoCad drafting and so was not equipped to carry out the position advertised so he offered her a training position. The Tribunal accepts that Ms Hsu felt misled and disappointed by this turn of events, because she believed she had applied for a draftsperson position not a trainee position.

63 Having regard to all of the evidence before it however, the Tribunal was not impressed by the evidence of either Ms Hsu or Mr Barakat. There are numerous inconsistencies in both their versions, although there is some support for both versions from their various witnesses. As stated earlier in this decision, for Ms Hsu to succeed in her complaint Ms Hsu must persuade the Tribunal that there is a strong likelihood the events complained of occurred. The Tribunal is not so satisfied. In the Tribunal’s view, Ms Hsu has not discharged the onus on her.

64 Accordingly, the Tribunal finds the complaints of sexual harassment and sex discrimination not substantiated and therefore dismisses the complaints.

65 No Order as to Costs.