Irvine and Porter v Mermaids Café and Bar Pty Ltd and Ingall (No 2) - [2010] QCAT 482

CITATION: Irvine and Porter v Mermaids Café and Bar Pty Ltd and Ingall (No 2) [2010] QCAT 482

PARTIES: Cheryth IRVINE and David PORTER
v
Mermaids Café and Bar Pty Ltd and Jon INGALL

APPLICATION NUMBER: ADC040-09 & ADC041-09

MATTER TYPE: Anti-Discrimination Matters, final hearing

HEARING DATES:  23, 24 & 25 August 2010 and 1 September 2010
DECISION OF:  P Roney, Member
DELIVERED ON:  27 September 2010
DELIVERED AT:  Brisbane

ORDERS:That the Respondents pay compensation to the Applicant Irvine for sexual harassment of $2,650 inclusive of interest and for unlawful discrimination the sum of $53,047.60 inclusive of interest. The complaint by the Applicant Porter is dismissed. Liberty to apply.

APPEARANCES and REPRESENTATION:
APPLICANTS:  Cheryth IRVINE and David PORTER represented by Mr See of Counsel instructed by Stephens and Tozer, Solicitors
RESPONDENTS:  Mermaids Café and Bar Pty Ltd and John INGALL represented by Mr A Collins of Counsel, instructed by Fitz-Walter Lawyers
CATCH WORDS:  Sexual harassment of restaurant staff. Discrimination by termination on grounds of pregnancy. Termination of employment of associated family member. Victimisation. Visa sponsorship and maternity leave.

Introduction

Ms Cheryth Irvine seeks compensation and other relief arising out of what she contends to be the sexual harassment of her by the Respondents whilst an employee of the First Respondent in 2008. There is a second aspect to the complaint. That concerns both Ms Irvine and her de facto partner, David Porter, arising out of the circumstances of the termination of Ms Irvine’s employment with the First Respondent in early 2009. She claims that she was subjected to discrimination, in contravention of s.15 of the Anti-Discrimination Act 1991 (“the Act”) primarily on the basis that her employment was terminated on the basis of her pregnancy. In submissions the Applicant relied upon breaches of s15(1)(b)(c) and (d) of the Act and a claimed denial to her of maternity leave. But on the evidence that only such “denial” was the deprivation of it affected by termination of her employment.
There is also a claim by Mr Porter that is related to, but different, from that made by Ms Irvine in respect of her termination. Mr Porter was also an employee of the First Respondent. He was the head chef in the restaurant business called Mermaids which it ran at Burleigh Heads on the Gold Coast. For convenience I shall refer to the First Respondent as Mermaids. He was in a de facto relationship with Ms Irvine and was the father of the, as then, unborn child of Ms Irvine. Shortly after the giving of notice of termination of Ms Irvine’s employment which occurred on 19 January 2009, on the 22^nd of January 2009 Mr Porter was given 7 days notice of termination of his employment by the Second Respondent on a basis which he contends was discriminatory, on the grounds of the pregnancy of Ms Irvine. He makes that claim in reliance upon s.7(p) of the Act, i.e. on the basis of his association with Ms Irvine as a person with the attribute of pregnancy. There is also a case advanced that his dismissal was based upon his victimisation, within the terms of s.130 of the Act. All of the contravening conduct alleged against the First Respondent is alleged to have been brought about by the Second Respondent.
In contentions filed in the Tribunal in February of 2010 the Respondents made a cross claim for orders as against both Applicants for declarations that the Respondents had not breached relevant sections of the Act, and that Ms Irvine provide a written apology to the Second Respondent, presumably arising out of the making of the complaint in the first place. The Respondents did not direct any part of their final submissions to the substantiation of such claims for such declaratory relief, or for the apology sought.
Despite a tendency for the Applicants’ case to become distracted by the issue of the existence or otherwise of a harassment and discrimination policy or manual within the Mermaid’s business during 2007, this case involves no controversy about the vicarious liability of Mermaids for any of the alleged conduct of the Second Respondent. It was conceded on behalf of the Respondents that if that conduct did in fact occur, Mr Ingall was the person responsible for the relevant conduct, and that Mermaids is vicariously responsible for that conduct in the event that those allegations were made out. Hence there is no issue arising under s.133 of the Act as to whether the employer took reasonable steps to prevent a contravention by a worker.

Visa Sponsorship by the Respondents

The first Applicant is a 37 year old woman who was born in Ireland and travelled to Australia in 2004 on a work holiday visa. Initially she travelled to various parts of Australia but then decided that she wished to stay in Australia permanently. In 2007 she was referred to Mr Jon Ingall, the Second Respondent, with a view to obtaining employment in the restaurant which the First Respondent ran at Burleigh Heads. Mr Ingall is, and was at the relevant time the sole director of Mermaids. He had a considerable number of years of work and life experience compared to Ms Irvine. He did not state his age in evidence. For all intents and purposes at the relevant times, Mermaids restaurant was his restaurant and, with the assistance of his staff, he ran the restaurant on a day to day basis. There is some controversy about the regularity with which he came to the restaurant, but it is not determinative of any issue. Ms Irvine says that she started at Mermaids as a casual employee in late 2007 and commenced as a full time employee in April 2008.
On 29 January 2008 following an application in that regard, Mermaids was given formal written approval from the Department of Immigration approving an application for a “standard business sponsorship”. The approval email from a delegate of the Minister for Immigration notified that there had been business sponsorship approvals for two persons employed by Mermaids. The approval does not specifically refer to it being an approval for the sponsorship of Ms Irvine, however it appears to have been common ground that she was one of those to whom the approval related. Ms Irvine accepted that Mr Ingall had been gracious and generous in providing her sponsorship. Most of her dealings with Mermaids to do with that involved the previous manager, Mr David Taylor, although she had had one meeting with Mr Ingall prior to her being employed.
The January 2008 sponsorship was referred to by some witnesses in the evidence as a “class 457 visa”. This appears to have come from the reference in the notification of sponsorship approval that employees who were sponsored under such approvals were given a so called “a subclass 457 visa”. In essence, this permitted sponsored employees to remain in the country and to work on a visa whilst under the sponsorship and employment of the particular business which was sponsoring the employee. The relevant page of Ms Irvine’s passport at the time, as tendered, showed that she had been awarded a “class UC Temporary Resident Subclass 457” visa from 1 April 2008 subject to conditions which included a work limitation.
In written submissions filed for the Applicants, it was contended that the provisions relating to the grant of an application for a 457 visa were as set out in schedule 2 to the Migration Regulations of 1994, and in particular Regulation 1.20 of those Regulations which set out the eligibility requirements for an Australian business i.e. an employer, wishing to sponsor a worker who had been granted such a visa. Essentially, those obligations were that the sponsoring business was required to comply with the laws relating to workplace relations applicable to such a worker, and any relevant workplace agreement.
There is no evidence of any workplace agreement in place at Mermaids. The terms of her employment were set out in letters to her dated 3 April 2008 and 12 May 2008. One of the obligations specified by that Regulation was that the employer comply with the gazetted minimum salary for a person discharging the visa holder’s role. In this case, that was the salary of a restaurant and catering manager, and which had been gazetted at a minimum of $41,850 per annum. Counsel for Ms Irvine sought to establish that this wage rate was below the average salary for persons working in the relevant industry. Counsel for the Respondents did not take issue with that submission.
According to sections 1.20E and 1.20F of the 1994 Regulations, the term of approval of a sponsor under the Regulations ceased in relation to a sponsored person at the end of 28 days from when the sponsor notified the immigration authorities that the person had ceased to be employed, when the visa holder left Australia, or when the person ceases to hold the 457 visa but was granted “a substantive visa”. The terms of that approval, and the obligations which attached to it were the subject of some controversy during the hearing, primarily because the Respondents contended that their decision in late 2008, to terminate her employment, affected in early 2009 occurred not by reason of her pregnancy, but by reason of what were regarded as the onerous conditions which attached to that sponsorship, insofar as it related to Ms Irvine, or because it became “financially unviable” for the Respondents to continue with her employment because of those obligations. I shall return to these issues later in my reasons.
In his written response to the complaint of Ms Irvine, and provided to the Anti-Discrimination Commission Queensland (“ADCQ”) in June 2009, Mr Ingall contended that he employed Ms Irvine after an approach late in 2007 by a former employee who had asked if he would be willing to employ her friend, namely Ms Irvine, under a section 457 Visa sponsorship. Mr Ingall apparently believed that she was working pursuant to such a visa at that time at a café in Currumbin. Nothing was mentioned in Ms Irvine’s affidavit material to suggest that she had entered into previous sponsorship arrangements of a similar kind to those she entered into in due course with the Respondents. There is no evidence of any earlier working visa having been granted to her. Prior to the sponsorship of Ms Irvine, Mr Ingall had not been involved in sponsoring employees under this scheme, so his dealings with Ms Irvine were his first experiences and, he was for the first time coming to an understanding what the responsibilities were which attached such an arrangement.
By its terms, the sponsorship was for a period of two years or “cancellation of the sponsorship, should it occur”. There is no evidence explaining the circumstances in which, by law one might be entitled to cancel such a sponsorship, although during final submissions counsel for the Applicants submitted that such arrangements could in effect be terminated for any reason that the law would permit the contract of employment to be terminated.
An issue which from the outset of this case assumed considerable significance for the discrimination case was whether one of the conditions which attached to the visa sponsorship of Ms Irvine by the Respondents was that even if she ceased to be able to perform her work tasks, (for example because she was away on maternity leave), she was nevertheless entitled to be paid the gazetted minimum salary in force. In his final submissions, counsel for the Applicants conceded that there was no such obligation at law which attached to her employment, and that in fact her entitlement, in the event that she sought to take maternity leave, was that which applied under the relevant workplace and industrial relations laws, namely that she was entitled to a period of 6 months unpaid leave. The Respondents’ submissions did not address this issue.
The Respondents submitted that the Respondents’ apparently erroneous view that Ms Irvine was entitled to payment during her period of maternity leave did not “arise until after Mr Ingall had made the decision to terminate. Ingall did not give evidence of any perception of being obliged to pay Irvine whilst on maternity leave”. There is, in my view, an important distinction to be drawn between whether in fact and law there was such an obligation, and whether relevant persons within Mermaids’ organisation, or those who advised it, had the perception that there was such an obligation. As this case progressed, the date when the Respondents apparently first came to erroneously think that they had to pay a wage during Ms Irvine’s period of maternity leave became later and later. Here the issue of whether that was believed by management within Mermaids before Ms Irvine and Mr Porter were terminated is crucial.
At some stage in the latter part of 2008, Ms Irvine apparently decided that she would seek the approval and co-operation of her employer to obtain a different kind of visa and which involved a different kind of business sponsorship from him. Some of the evidence referred to this as an “employer nomination scheme”. In what follows I shall refer to these respectively as the “457 visa” and the “employer nomination scheme”.
There was no material describing how that employer nomination scheme worked, or what its prerequisites were from the point of view of the authorities administering it. The evidence of witnesses called in the Respondents’ case is that the consequence of her making that application was that the employer, Mermaids would have been required to supply “detailed financial information” about its business. The evidence is that for various reasons, the details of which remain elusive, but which included an ongoing dispute with the landlord of the restaurant premises, Mermaids was unwilling to provide that financial information, even, apparently to the Department of Immigration for the purposes of assisting the First Applicant’s application in that regard. As part of the employment terms of Ms Irvine she was entitled to and received payments in cash, which she was obliged to keep secret. When asked about this in cross examination, Mr Ingall claimed the privilege against self incrimination. It may be inferred that one sensitivity to providing information to the immigration authorities related to that issue.
There was a body of evidence led in the case for the Respondents, principally from the financial advisor to the business, Mr Henry and also the office manager and supervisor, Christine Hopes, and to some extent by the Second Respondent himself about what investigations were carried out during 2008 either for the purposes of deciding whether to continue with the class 457 visa sponsorship, or for the purposes of deciding what should happen to the later application in that regard. It seems that most of the work on this was done by Mr Henry and Mrs Hopes, although they disagreed as between themselves as to who did the major part of the relevant investigation and when they did it. Moreover, there was considerable confusion between those called in the Respondents’ case as to precisely what visa class conditions were being investigated by them in 2008, what the conditions which attached to it were, and what the basis was for the eventual decision to terminate her employment having regard to those circumstances.
The distinction between the two kinds of sponsorships is referenced in some of the correspondence from the Respondents to Ms Irvine at the time. On the 6^th of January 2009 the Respondents wrote to her referring to both kinds of sponsorship and drew the distinction between what was described as the sponsorship of her “subclass 457 visa” and what was described as her request for “employer nomination under the employer nomination scheme”. Of note is that as at that date there was no suggestion being made to her that the subclause 457 visa sponsorship was under threat, or consideration being given to terminate it. In that letter she was informed that Mermaids would not be able to supply information in respect of the “employer nomination”. But as the Second Respondent would in his evidence explain, he had in fact decided some months earlier to terminate her 457 visa sponsorship and, indeed her full time employment. If that in fact occurred, both decisions were concealed from Ms Irvine in the contemporaneous dealings with her in the many weeks leading up to her termination.
Under the 457 visa, Ms Irvine’s visa status and indeed her entitlement to remain and work in Australia depended upon her having continuing employment with the Second Respondent. That made her somewhat vulnerable in circumstances in which, if for any reason, her employer decided to no longer favour her with its support. It probably also meant that she was less likely to complain or object to poor treatment, if any, on the part of the employer than an ordinary employee would have, and would be less likely to want to cause any trouble in the workplace. Issues to do with the market place exploitation of such sponsored employees were dealt with in a report commissioned by the Minister for Immigration in mid 2008. A copy of that report was exhibited to the statement of Ms Irvine. Counsel for the Applicants sought to argue that there was evidence of exploitation of Ms Irvine here, principally because of the requirement that she work much longer than a standard or average 38 hour week, and of her having been underpaid as a result. That issue was one canvassed and dealt with in another forum, and does not seem to have any direct relevance to the issues I have to decide, except to note that it must have been obvious to Mr Ingall that Ms Irvine was in a relatively vulnerable position, compared to non-sponsored employees.

Credit, and the way the case was conducted

At the time when the events said to comprise sexual harassment occurred, Ms Irvine was 35 years of age. She had worked in restaurant environments since 1995, mostly at a management level. She had managed a restaurant with over 100 seats in Belfast. Other employer references suggested that she had been employed as a trainee manager in a Frozen Foods Factory in the United Kingdom and had moved to management level there. It seems from the limited material put forward, that she was well regarded by those employers and that her employment in those places was unremarkable, in the sense that it did not involve any controversy.
Her demeanour in the witness box did not suggest that, at least at the time of the hearing, she was a person with high levels of self confidence, or was particularly outspoken or strident in her views. She may well have had greater confidence in herself during the time for which she was employed with the Respondents. In the course of giving evidence she broke into tears on several occasions, sometimes had difficulty containing her emotions in other ways and appeared to be a person who was very emotionally vulnerable. Ms Irvine gave evidence, which I accept, that she very much enjoyed her work at Mermaids restaurant and was extremely disappointed when her employment was terminated. The Respondents called evidence from Mr Anthony Holt, who was a practitioner in chiropractic and naturopathic medicine who described himself as a celibate monk. He swore that in mid 2008 he had Ms Irvine visit his medical practice complaining of vomiting. The Second Respondent had brought her in. Mr Holt treated her for muscle spasm and the account was paid by the Second Respondent, an act which it seems to me to be of no particular significance, despite the suggestion by the Second Respondent that he was surprised that she had not paid the bill or reimbursed him for having paid it. In his statement prepared by the solicitors for the Respondents and filed in the Tribunal, Mr Holt mentioned that he first met her at Mermaids while she was working, and that she was “very outgoing and flirtatious” toward him and other patrons. His reference to her being flirtatious was clarified in cross examination as meaning that she was “light-hearted and fun”, not in any way sexually flirtatious. How his statement came to refer to her being flirtatious might have called for explanation. But he was not asked to give one. But in any event, Mr Holt observed her to be outgoing in her dealings with the public whilst working in the restaurant.

The fact that the Second Respondent had seen fit to sponsor her under the 457 visa, and had given her significant responsibilities in the restaurant suggests that she was a person held in high regard and as competent and capable of working in a restaurant environment over long hours. There was evidence that those who worked in this restaurant, if not in all restaurants like it, worked for long periods, and often for many consecutive days without rostered days off. It might be expected that in such an environment a level of confidence, particularly for management floor staff like Ms Irvine would be essential. It was the policy of Mermaids, and Mr Ingall himself said he strove to encourage individuality and personality and he encouraged in his staff what he described “freedom to be flamboyant”.
At the time of the conduct complained of, Ms Irvine was not in a relationship with any other person. Mr Ingall, on the other hand, had been in a longstanding relationship, although he did not live in the same house as the person with whom he had that relationship. He described this relationship as an exclusive relationship. He and his partner each had children from previous relationships but none from their own.
Part of the case conducted on behalf of the Respondents involved the assertion that Ms Irvine aggressively pursued her employer to obtain its approval of her employer nomination scheme application. Indeed it was suggested that she had gone so far as to “blackmail” her employer during the busy Christmas period at the end of 2008 by effectively refusing to come to work and perform her duties unless approval was granted to sponsor her under that scheme. By the time that final submissions were being made on behalf of the Respondents the suggestion made on their behalf was that she had been “particularly aggressive in pursuing that upgraded sponsorship” and that she had “engaged in the disgraceful conduct of threatening not to come in over the Christmas period unless (Mr Ingall) acceded to her request”. Ultimately it was suggested that she was far from being a “shrinking violet” and was “assertive” of her position. This assertiveness, it was submitted, was one of the factors which led to her termination. Despite the making of that submission, Mr Ingall did not support it by evidence to suggest that he had terminated her for this supposedly assertive behaviour. Indeed the contemporaneous documents give an entirely different picture.
There were other strident attacks on the credibility of Ms Irvine, and indeed on that of witnesses called in her case. Mr Ingall saw it as appropriate to include in his statement filed in the Tribunal an assertion that one reason for his decision of mid to late December 2008 not to proceed with her 457 visa sponsorship was that at about that time two regular customers of the restaurant and a supplier had separately approached him and told him that Ms Irvine had offered them “sexual favours” if they would persuade him to take up her sponsorship nomination. There was no attempt, in cross examination of Ms Irvine, to seek to establish the truth of any such assertion and counsel for the Respondents did not submit that there was any truth to it in making his final submissions. In the same statement Mr Ingall referred to a statement said to have been made to him by Ms Irvine on the 24^th of December 2008 that if her paperwork for the employer sponsorship was not processed she would not be available to work over the Christmas New Year period and that her partner, Mr Porter would resign. Mr Ingall described this in his evidence as an attempt by her to “blackmail” him.
In final submissions directed inter alia to the credibility of the Applicants and their witnesses in the proceeding, counsel for the Respondents made the submission that the Applicants’ case was based on collaboration, reconstruction and tailoring of evidence to fit the relevant events. Once again, the submission was made without there having been any attempt to establish by evidence that they had in fact engaged in collaboration, reconstruction or tailoring of evidence. That such a submission was made, no doubt on instructions, was consistent with the approach adopted by the Respondents to the resistance of the Applicants’ claims generally, namely to expose the Applicants themselves to an attack upon their own morality, honesty and decency. And by way of a pre-emptive strike, to counterclaim for an order that the Applicants apologise for making the relevant allegations in this Tribunal in the first place.
Suffice it to say that I saw nothing either in the demeanour of Ms Irvine, or Mr Porter, or for that matter in any of the witnesses who were called on their behalf, most of whom were independent of them and some of whom were required to attend under compulsion to give their evidence, that there had been any intentional reconstruction or tailoring of evidence or collaboration between them. There was nothing in the demeanour of either Ms Irvine or Mr Porter to suggest that they were aggressive, demanding or unreasonable individuals or that they had reacted in any way other than reasonably to the circumstances which presented to them after Christmas 2008. A submission was made on behalf of the Respondents that the Tribunal ought be satisfied inter alia on the evidence of the witness Peter Tayler that Ms Irvine was “particularly aggressive” in pursuing the business sponsorship. Ironically the Respondents sought to discredit the other evidence of Mr Tayler by leading evidence in its own case, not initially put to Mr Tayler, that he had made an inconsistent statement concerning the circumstances in which Ms Irvine had been said to have made an earlier complaint about her sexual harassment. It was sought to discredit Mr Tayler as a person who had falsely given evidence of an earlier complaint to him by the Applicant, because, it was suggested he had made a directly inconsistent statement to the effect that there had been no such complaint made to him at all and he had told this to the Respondent solicitor on or about the 18^th of May 2009. So the Tribunal was invited to accept that Mr Tayler was to be believed if his evidence favoured the Respondents, but not otherwise.
One of the other allegations put against the Applicants generally and which was also the subject of submissions was that the Second Applicant, Mr Porter, had provided damaging information, to the effect that Mr Ingall had sent the suggestive emails which were put as part of the complaint of sexual harassment to a person with whom the Respondents are in acrimonious dispute, and in other litigation. That culminated in the submission that Mr Porter was motivated to intentionally cause harm to Mr Ingall. In that context, it was submitted that the Tribunal could not be satisfied that the case had been made out against the Respondents in circumstances in which the reputation of the Respondents could “be effectively ruined” by that evidence. Ironically, the inescapable conclusion from the way in which the Respondents presented and argued the case against the Applicants was that the Respondents had themselves engaged in personal attacks designed to destroy or perhaps only seriously impeach the character of these Applicants, who, it was suggested, were motivated by a desire to destroy the business and reputation of the Respondents. Rather than proving the proposition sought to be advanced by that approach, it rather suggested that Mr Ingall was the person motivated by personal animosity, driven by an aggressive dislike for the other parties and the witnesses who were called for them. There was not the slightest evidence to support the proposition that there had in fact been any collusion between the Applicants, or their witnesses, or the manufacturing of evidence to fit the Applicant’s case, but the submission that they had, was nevertheless made.

The Evidence of Mark Henry and Christine Hopes

Two critical witnesses called in the case for the Respondents were the Second Respondent himself and his financial advisor Mr Mark Henry. The evidence from Mr Henry was largely relevant to the question of investigations he had conducted into the circumstances of the visa sponsorship of Ms Irvine, and which lead to the decision to terminate her. The evidence of Mr Henry was in many respects vague, both as to detail, and as to his understanding of the relevant events as they were occurring. But critically, his evidence was that by the end of 2008, he knew that, or at least believed that if Ms Irvine took maternity leave, she would be entitled to be paid her full wage during that period of leave. Later in his evidence he sought to distance himself from that evidence to some degree although did not move away from the proposition that he understood that such an obligation existed, but became more and more confused about whether he was referring to the arrangements under the 457 visa, or the proposed employer nomination scheme. He initially seemed to be of the impression that he gave advice about the inappropriateness of entering into a three year sponsorship, presumably the employer nomination scheme sponsorship, but despite having initially showed that he was unaware of the existing two year sponsorship under the 457 visa, appeared at last to recall that arrangement. In general terms, the thrust of his evidence was that the decision to terminate Ms Irvine’s employment was based on the “financial unviability” of engaging her for a three year period if the employer nomination scheme were adopted. He could not explain why it was any more or less onerous upon the business for her to be engaged as she was in any event under the existing two year sponsorship than under the, largely prospective, three year sponsorship. In general I found the evidence of Mr Henry implausible, largely based on his attempts to reconstruct the relevant events based on his own faded memories, and done without proper reference to contemporaneous records.
The Respondents called Christine Hopes as a witness in their case. She gave evidence which was largely inconsistent with that given by Mr Henry about the level of enquiry being conducted by either or both of them concerning the employee entitlements of Ms Irvine were she to take maternity leave. Ms Hopes was an important witness in the Respondents’ case, but she was not made available for cross examination in person because she was on a holiday trip. Hence her evidence was given by telephone, and which made it somewhat more difficult to form a judgment about her credibility. But nevertheless she seemed generally to be a witness of credit, although she tended from time to time to lose sight of the question being put to her. She appeared to be unaware that in late 2008 Mr Henry was looking at the financial figures or forming any view about the financial viability of continuing with any visa sponsorship of Ms Irvine or indeed of the possible termination of Ms Irvine’s employment. She too had been told by a person unidentified that Ms Irvine was entitled to full pay on maternity leave. But she swore that she was in fact told this by someone at Immigration, but 10 days after Ms Irvine’s employment was terminated. There were no contemporaneous notes kept by Ms Hopes to substantiate her evidence of the receipt of that late advice. But the other conduct of the Respondents’ representatives at the time, and particularly Mr Henry on that issue, would tend to suggest that such an “entitlement” was identified, if not by her, then by Mr Henry well before the termination of Ms Irvine’s employment. It seems to me surprising that Ms Hopes would not have been told of this obligation by Mr Henry well before her termination but she may not have been. She claims to have been aware that Ms Irvine was on a two year sponsorship in 2008 but then asserted in her statement that she was responsible for progressing the 457 visa. It is difficult to see what she could have been referring to in that context because all of those arrangements for the 457 visa appeared to have been concluded by January 2008 at the latest. But then she was instructed by Mr Ingall to make enquiries about the cancellation of the sponsorship. Her evidence also showed a complete lack of focus as to whether she was making enquiries about the cancellation of the 457 visa, or not progressing the employer nomination scheme visa. Mr Ingall had asked her to investigate possibilities of terminating the visa. She gave evidence that this had to do with the refusal of Ms Irvine to take no for an answer, that Ms Irvine was unprepared to provide the necessary paperwork, and that Mr Ingall did not feel she was the kind of person he would sponsor. Little of this fits well with any suggestion that neither Mr Ingall, nor his financial advisor were aware of, or at least believed they had an obligation to pay her wage during her maternity leave. It is certainly inconsistent with the suggestion made by Mr Ingall and Mr Henry that the decision to terminate her employment had to do with the economic conditions and the “financial unviability” of employing her as a full time employee, and nothing to do with her impending maternity leave and any possible obligation to pay her during that period. Mermaids had been willing to sponsor her for most of 2008. There was no plausible explanation put forward as to why she would suddenly become a person whose character made her inappropriate for sponsorship. None of the contemporaneous correspondence in January 2009 made any reference at all to such matters as her character.

The Evidence of the Second Respondent

Mr Ingall filed statements both in the Commission and in the Tribunal and was cross examined at length. His evidence was characterised by a tendency to make self serving statements, indeed to advance the arguments of the Respondents. It is not uncommon to encounter self represented parties acting in this way, however Mr Ingall was represented by experienced counsel and a competent solicitor. His evidence about his state of mind in deciding to terminate the Applicant’s employment and the process of thinking that led to the termination of their employment, was confused and confusing. He was, unfortunately permitted to respond to questions in cross examination in a way which permitted him to give rambling and expansive answers, which were largely irrelevant to the question asked. His explanations for why he in fact terminated Ms Irvine as he did, based, he contended, on a decision he made well before Christmas 2008 was not consistent with the contemporaneous correspondence that he had sent to Ms Irvine during and after that period. It seems to me that either that correspondence accurately reflected his intentions for her, or he concealed his real intentions by giving her a false impression in that correspondence. On balance, I consider the more likely view to be that the correspondence accurately reflected his attitude toward her. He denied having any discussion with Mr Henry at all about maternity leave, although he knew that she had applied for that leave. He also denied having any knowledge of the information that had emerged as a result of the enquiries he had sent Mr Henry to conduct.
In the course of cross examination Mr Ingall was asked some questions about the hours that Ms Irvine worked. Counsel was suggesting that she had worked longer hours than obliged by law. Rather than respond to those questions, Mr Ingall volunteered criticism of her that she had improperly signed off on her own timesheets, as if to suggest that this was further evidence of inappropriate dishonest conduct. He also volunteered the suggestion the he had suspicions about the accuracy of her timesheets. This was an issue which had never been raised before in any of the material. Even a cursory view of those timesheets would demonstrate that that criticism was without foundation, but in any event it demonstrated that Mr Ingall adopted a adversarial position toward the Applicants and the case they were putting against him. In general I found the evidence of Mr Ingall to lack credibility. He gave implausible explanations as to his own behaviour at the time and had a tendency to say whatever came to mind that he thought might advance the case for the Respondents. He gave evidence about the decision to terminate Mr Porter. Despite the absence of suggestions to this effect in his statement, he accused Mr Porter of denigrating his business in public and of totally abrogating his responsibilities as an employee. Having regard to contemporaneous correspondence, and the evidence of others who were involved at the time of the termination of Mr Porter’s employment, demonstrably the assertion that Mr Porter had totally abrogated his responsibilities was unfounded and without merit.

The Allegations of Sexual Harassment

The First Applicant’s statement of contentions alleged the following conduct, said to comprise sexual harassment of her:
“Between late April 2008 or early May 2008 and about August 2008, whilst employed by Mermaids, the Applicant was subject to sexual harassment, contrary to Section 118 of the Anti-Discrimination Act 1991 (Queensland), by the Second Respondent.
PARTICULARS
(a)the Second Respondent invited the Applicant to attend a football match with him at Brisbane.
(i)in the evening after the football match, while walking towards the Second Respondent’s motor vehicle, the Second Respondent put his arm around the Applicant.
(ii)later that evening, the Second Respondent took the Applicant for a cup of coffee in one of the surrounding suburbs in Brisbane. The Second Respondent put his arm around the Applicant and massaged her skin.

(iii)On their drive back to the Gold Coast in the Second Respondent’s motor vehicle, the Second Respondent rubbed his hand up and down on the inside of the Applicant’s knee and thigh.

(b)the Applicant was invited by the Second Respondent to attend another football match at Robina. Again, the Second Respondent was over-familiar with the Applicant by physically touching her in a sexual manner.

(c)a day after the incidents at (b), while the Applicant was at work, the Second Respondent asked the Applicant out to a park some distance from the restaurant. The Second Respondent expressed his feelings toward the Applicant and stated he needed to “clear the air”. He stated that “personal qualities which were missing in his partner he found in the Applicant and was physically attracted to her”.

(d)the Second Respondent said to the Applicant one morning at the restaurant outside the kiosk window that “I wish I wasn’t so attracted to you”.

(e)in that same week, at breakfast in the restaurant, the Second Respondent called the Applicant over, said to her “You’d look good in that. It’s very you”. He was pointing at clothes that a model was wearing in a magazine.”

As to these allegations, the Respondents accept that she attended two football matches with Mr Ingall and although unable to recall the specific incident, may have shown her a fashion magazine article and perhaps commenting that she would look good in something depicted there. But he otherwise denied all of the allegations of physical touching, any over familiarity with her, denied that he was attracted to her and denied suggesting he was interested in a relationship with her which went beyond that of employer and employee.

The Risqué Emails

Absent from those particularised allegations were any grounds based on the sending of emails to her by the Second Respondent on the 21^st and 25^th of August 2008 which might be thought to be sexually suggestive. Ms Irvine sought to make the sending of those emails part of her harassment case, but she did not seek to do so until the introduction into evidence of those emails in the course of her re-examination on the first day of the hearing. Those emails were essentially two on-forwarded emails which had themselves been sent to Mr Ingall by acquaintances of his in mid 2008. They were sent by Mr Ingall only to Ms Irvine and not to any other employee. The first which was entitled “social etiquette lesson 1” had as a covering note to the email which stated; “always make sure your man feels warm and fuzzy when you are out together. Your social director – Patrick Svengali”. Attached was a photograph of a naked woman leading a naked man by the penis along the pool side. The second, sent to Ms Irvine on 25 August 2008, and only to her, contained a covering email signed “JI” for Mr Ingall, said “some inspiring ideas for new uniforms”. With the attachment was the on forwarded email from Mr Ingall’s acquaintances that said “what you see below are not see-thru skirts. They are actually prints on the skirts to make it look as if the panties are visible and these are the current rage in Japan. They will be the rage here soon. I forward this as a public service, so you won’t have a heart attack when the rage reaches Australia”. What followed then were a series of photographs of Asian women wearing these fashion items that appeared as though the women were wearing see-thru skirts and their underpants were visible. The tendering of these emails in re-examination was apparently prompted by the cross examination of Ms Irvine to the effect that she herself was in the practice of sending risqué emails. This may have been in response to the allegations in fact made in her original complaint to the effect that Mr Ingall had been overly familiar with her in emails. The evidence shows that within a week of, both prior to the sending of the emails just referred to by Mr Ingall, the Applicant herself had sent at least one email to staff, including to Mr Ingall with pictorial attachments, some of which had no risqué or sexual suggestiveness whatsoever, some of which involved a play on words, which if pronounced quickly might have involved obscene or offensive language and some emails with pictures that were risqué, or would be seen to be by some.

With the complaint which she lodged with the ADCQ in April 2009, Ms Irvine provided a statement in which, amongst other matters mentioned she was in receipt of unwanted attention from Mr Ingall. She referred to the fact that “text messages and emails continued for some months and never really disappeared until the latter part of 2008”. In context though, this appeared to refer to text messages and emails inviting her to dinner or movies or other social events. Nothing in that complaint specifically references the sending to her of any risqué emails or the like. It certainly did not mention that she had taken offence to the emails of August 2008 to which I have referred. In her statement filed in this Tribunal she also referred to the receipt of invitations by email from him which she felt improper and made reference to text messages and emails continuing after that. She exhibited those emails to which she apparently took offence. None included the emails of August to which I have referred.
Her evidence is that the texts that she received, but which she did not keep, were invitations to go to social events, and had no sexual connotation. They were texts inviting her to movies, dinner or the theatre. I am unable to conclude on the secondary evidence about their content that they amounted to sexual harassment. On her evidence she accepted some of these texted invitations. She went to some of these events but not others. In context, it seems to me to be clear that Ms Irvine’s complaints about the receipt of emails was that they were emails which amounted to invitations from him to attend functions with him, and which sometimes signed as a Second Respondent as “your social director...Patrick Svengali”. Patrick is Mr Ingall’s middle name.
When asked about the August 2008 emails she explained that the reason that they hadn’t come to light before the hearing was because she hadn’t been able to find them, although she knew there had been offensive emails sent. One of the matters which counsel for the Respondent addressed in final submissions was that there had been in some way a lost opportunity to respond to the allegations concerning the risqué emails. No objection was made to the tender of those emails at the time, and no application made to further cross examine the Applicant about them. Mr Ingall had an opportunity to respond to the allegations about the sending of those emails. He did not dispute that he had sent them or seek to show that they had some particular context. The submission was made, however, that there might have been other emails which were sent by either party to the other which might show a practice that Mermaids, or as between Ms Irvine and Mr Ingall of sending risqué work emails. In my view there is nothing to this complaint because in fact the cross examination of Ms Irvine, the first witness called in the case, sought to establish that very fact.
In the end, it seems to me that nothing of significance turns, in this case, upon the sending of either the emails sent by Mr Ingall, or those sent by Ms Irvine. They were all sent and received on the same month. Each involved the attachment of photographs of nude persons of some degree or other, but all involved some contextual joke about the nudity. In the particular circumstances here, I do not regard the sending of the two emails sent by Mr Ingall as having constituted sexual harassment of Ms Irvine.

The Rugby Match and the Facial Voucher

There is evidence, which I accept that it was part of the practice of the Second Respondent to encourage staff to attend social functions, and wine tastings and the like; and sometimes staff would attend them with Mr Ingall. There was little, if any evidence to support the proposition that the Second Respondent made a practice of inviting other individual staff members, particularly female staff members, to attend social functions alone with him. Two functions Ms Irvine did attend in 2008 were both football matches. One was a rugby union match in Brisbane, the second a rugby league match at the Titan’s Rugby League ground on the Gold Coast. There is a dispute about when those matches were played and who was playing at them. Little may turn on precisely when these games occurred.
The date, or even the month when they attended the rugby union match in Brisbane is unclear on the evidence. None of the witnesses called on the issue, including Mr Ingall, seemed to be able to identify which teams were playing, or even whether they were international teams. There was contradictory evidence as to whether it was a Wallabies’, (i.e Australian Representative) game, or a game between regional, non national teams. The Applicant suggests that this game was in April or May 2008. Mr Ingall’s evidence was that he commenced to employ her on the 1^st of April 2008 and that “in the next few months” he invited her to the rugby match at Brisbane, and a rugby league game at Robina.
It seems unlikely that he is correct in his recollection that she commenced her employment on 1^st April 2008 because the evidence is that she started as a casual in late 2007 and it is common ground that he had provided her with a voucher to receive a facial in early March. He accepted that she was given such a voucher and that it was addressed to her, although the evidence is that it was addressed and signed by the therapist who issued the voucher. The voucher was signed off, apparently on Mr Ingall’s instructions, “J.I. XXO”; symbols for kisses and a hug. The evidence, which I accept, is that this notation “J.I. XXO” was actually written on the voucher by the therapist. What Mr Ingall wrote on the voucher card was simply and innocuously; “you are doing a great job”. Vouchers were given to other staff as well. The fact that she received one does not seem to me to be demonstrative of any improper interest in her over that shown to other employees, including male employees who also received such vouchers. In the context of this case, I do not regard the provision of that voucher in March 2008, with its notations, as amounting to sexual harassment of Ms Irvine, nor as corroborating claims that she was harassed later in 2008.
When they attended the rugby union match in Brisbane, Ms Irvine was the only person who came with Mr Ingall. She was certainly the only staff member who was invited. There were probably other persons who were also present with them at the game who were known to or were friends of Mr Ingall, however the evidence does not suggest that this was a group outing of staff of any kind. Both the Applicant and Respondent drove together to the game in Brisbane from the Gold Coast and returned in his car. This would have involved a drive home of about one hour. On her evidence, as they were walking towards his car after the game, the Second Respondent put his arm around her, which, “politely”, she shrugged away. She said nothing. Later that evening they went for a coffee. Again, according to the Applicant Ms Irvine, the Second Respondent attempted to put his arm around her and then “massaged her skin”. She did not suggest that this was a kind of sexual touching. She said nothing about his attempt to put his arm around her nor say or do anything in response to his massaging her skin. Indeed she swore that she could not bring herself to protest his advances. This, she said, was because she was wary that her migration status rested with her employment.
Again, on her evidence, on the drive back to the Gold Coast that night she pretended to be asleep after he began rubbing the inside of her upper leg outside her clothes, but not on or near her genitals. She feigned sleep, she swore, because this was intended to stop him from rubbing the inside of her right knee and thigh outside of her clothes. She swore that although she was frightened by these actions and distressed, she did not do anything about them at the time and did not say anything to him to object to it at any time later. She might easily have politely rejected his advances, but she did not, for reasons which she sought to explain.
Mr Ingall gave evidence, supported by that of some other witnesses called in the Respondents’ case, that he was in the habit of inviting staff from time to time to attend football or other sporting matches. According to Mr Ingall, they attended that rugby game with his son and five other named persons. None of those persons was called as a witness, but it does not seem to me that anything turns upon whether they were called or not, because the allegations of inappropriate touching are not said to have occurred at any time in the presence of any other person, or during the match itself. He denies having touched her in any way on that occasion, or indeed on any occasion in a way which was inappropriate. He recalls them making small talk on the drive home and denies that he touched her in the way she described. It was common ground that no one else was in the car on the drive home. Nor is it of assistance in deciding what occurred that evening to know that the Respondent had earlier contemplated that on the drive home there might have been other passengers who initially might have thought they needed a lift. What is important is that there were only two of them present and hence little by way of other corroborative evidence in support of, or to disprove the allegation that this touching occurred.

Corroborative early complaint

It was put to Ms Irvine that she had not told anyone about that incident of harassment and that this complaint, as indeed were all of the complaints simply, invented with a view to getting square against the Respondents for the termination of the Applicants’ employment.
The case put for the Respondents, both in cross examination and that put in final submissions contained as its central platform the proposition that no allegations of inappropriate touching were made until after she had “failed on her initial Work Cover claim”. The evidence is that she made a Work Cover claim on the 4^th of February 2009. In that claim, (which together with the attached statements is in evidence), she makes no mention of having been subjected to any sexual harassment. Critically however, that submission fails to have regard to the other evidence of earlier complaints that she had made of sexual harassment. Putting aside for one moment the evidence of other witnesses that swore to her having made complaints in 2008, on the 13^th January 2009, that is six days before she was notified by the Respondents that her employment was being terminated, she wrote to a government organisation known as “Workplace Rights” in the course of which she mentioned that her employer had “physically touched me and told me that he had strong feelings for me in a romantic and sexual nature. It has been obvious to most staff that he has been targeting me”. Unfortunately the copy of this email which is in evidence is incomplete, and despite an invitation to provide a complete and legible copy, none was. But what is made clear from that letter is that four weeks before the Work Cover claim was made in February, and a week before she was terminated and about which, on the Respondents’ case she was supposed to know nothing at that time, the Applicant had made an allegation of having been physically touched by Mr Ingall.
During cross examination of Ms Irvine it was put that she had invented the harassment claims after saying nothing about such claims in her complaint to Q-Comp. That proposition does not sit with the objective evidence. It was put to her that there had been hundreds, indeed thousands of staff employed by the Respondent and no-one else had been harassed. In response the Applicant said that in fact there had been some suggestion made by Mr Tayler, the restaurant manager, that “something” had happened to another staff member. This was not further pursued in cross examination.
In relation to the harassment following the rugby match, she described her response to the massaging of her skin and touching as being that she froze, and politely repositioned herself in the chair, despite wanting to scream. In her statement filed in the Tribunal she said that after the incident following the first football match she felt fatigued and dreaded going to work and could not consume breakfast because of the prospect that she would see Mr Ingall at work. It was put to her that she had not told anyone about the harassment. She swore that she had told Jody Taylor and Peter Tayler. But by reference to the statements of Ms Taylor and Mr Tayler it is clear that that report occurred only after the rugby league game incident, to which I shall turn shortly. In Ms Irvine’s statement to the ADCQ, large parts of which were transcribed into the statement filed in this Tribunal, she made no mention of reporting these incidents to any person. But in her statement to the Tribunal she said that on the night of the rugby league match incident, her flatmate Daniel Johnson noticed her being upset and asked if she was ok. She said that she confided in him about the physical advances to which she had been subjected. There was no mention of this discussion in her statement to the ADCQ, and no explanation provided for that, although she was represented by solicitors at that time.
Exhibit M to Ms Irvine’s Tribunal statement is a signed statement by Mr Johnson. There was no objection raised to the tender of that affidavit with that statement attached, although much protest was raised in the course of submissions about whether there would be reliance upon that statement in circumstances in which the witness was not in fact called to give direct evidence and was therefore not cross examined. In any event the statement appears to contradict the complainant’s evidence that the first complained of act of harassment was following her attendance at the rugby union match. That statement makes clear that Mr Johnson observed her upset after a rugby league match, not a rugby union match and makes clear that her complaint was concerned with an incident on the Gold Coast, not in Brisbane. The statement mentioned that Ms Irvine had spoken of how Mr Ingall had “put her in an uncomfortable situation; often physically touching her legs during dinners and tastings”. It went on to mention having been told by her that she had mentioned her situation to a male work colleague, (presumably Mr Tayler) and that it had been his suggestion that she tell Mr Ingall that she had a boyfriend rather than confronting him and putting an end to it. Peter Tayler gave no evidence of having given her any such advice or made such a suggestion.
It is difficult to place any weight upon the evidence contained in the statement of Mr Johnson. It appears to a large degree to be inconsistent with Ms Irvine’s own evidence, and also that of Mr Tayler. He may be confused about which football incident she reported to him. The complainant herself does not suggest that she had a conversation with Mr Johnson following the second football incident at Robina but certainly it does not corroborate the Applicant’s statement that she reported any sexual harassment following the rugby union match.
The evidence as to when the parties attended the Brisbane rugby match, and as to whether there was any of the conduct of the kind the complainant has described on that occasion is very unsatisfactory. There was no contemporaneous or indeed, any complaint, until almost a year later after that conduct was alleged to have occurred. Indeed the person to whom the complainant suggests she reported that incident makes no mention of it, but instead mentions another incident, which in her statement she does not describe as having been reported to that witness. The first mention of the incident was in her statement to the Commission made in or about April 2009, approximately a year after this incident is said to have occurred. In the circumstances, it seems to me that it is not possible to be satisfied to the requisite degree, applying the accepted test here as that in Briginshaw v Briginshaw (1938) 60 CLR 336, that the incident occurred when and in the circumstances in which the complainant described it. If something occurred after a rugby game which involved some physical touching, she apparently did not regard it as so offensive or unwelcome that she should mention it to any other staff member, report it to any person or alter her behaviour so as to avoid any further social contact with Mr Ingall. Indeed her own evidence is that she did attend a subsequent football match by herself at the invitation of Mr Ingall and included him as a recipient of slightly risqué emails.

The Rugby League Match at Robina

It is common ground that Mr Ingall invited Ms Irvine to attend a rugby league match at Robina. This was the home ground of the Titans rugby league team. By all accounts this match occurred some time after the rugby union match in Brisbane, although the date when this incident occurred in the subject of differing evidence from the witnesses who spoke of it. In her statement Ms Irvine described this incident as having occurred “some time later”, after the rugby match. Her statement was largely devoid of any detail about what occurred on that occasion except to say that she was invited by the Second Respondent to attend that match and “again as described above (referring to the physical contact that occurred after the rugby match) the Second Respondent was being over-familiar with me and physical touched me in a sexual manner”. When and precisely where that occurred was not the subject of any detailed evidence from her. How he managed to touch her in this way was not described either. In her evidence she briefly described being touched inside her leg in a similar way to that which had occurred after the rugby match. She was not cross examined about precisely how any of this had occurred. Nor did she describe in her evidence or in her statement how she felt about particular conduct except to say that she was physically and emotionally intimidated and, a “little hostile and defensive”. She said that it made her feel very distressed in the work place.
After the Robina match she claimed to have reported it to both Jody Taylor who was a chef at the restaurant and also to Peter Tayler, the restaurant manager. I have dealt with this evidence already. In Mr Ingall’s statement filed in the Tribunal he described the attendance at this game as being to the Skilled Park Stadium which was “brand new and generating a lot of media publicity”. He accepts that he drove her home and afterwards. There are other witnesses who attended that game who gave evidence. None of them observed anything untoward. In his testimony Mr Ingall had said initially that this game was in August 2008. Mr Hart, who also attended that game, said that the game might have been in July, August or September. In re-examination Mr Ingall was, by reference to a document printed off the internet, led to assert that the game had occurred on 18 August 2008. But as was pointed out in the written submissions for the Applicants one might go to the same website and find that there was another home game played at the Titan’s ground at Skilled Park on 28 June 2008. It is not difficult to obtain accurate records of the Titans 2008 rugby league season program. They show that the Titans team played at Skilled Park Robina monthly from March 2008. No one was able to give evidence of who the opposing team was at the critical game, which team won, or any indication of what that score was. The evidence of when this incident occurred is entirely unsatisfactory on the evidence presented by all parties concerned. Ms Irvine’s description of what happened to her is abbreviated. It is clear that she contends that he touched her between the legs and rubbed her thighs, leaving his hand there for some time, but does not say whether this occurred in a car, at the ground or somewhere else.

There were two independent witnesses called in Ms Irvine’s case to corroborate the complainant’s contention that some kind of unacceptable incident occurred on the day of her attendance at the rugby league game. They were Jody Taylor and Peter Tayler, as previously mentioned. Her partner Mr Porter also swore to his having been told by her in September 2009 of “sexual advances” having been made to her, and of her unhappiness at Mermaids. Ms Taylor had given two statements, one on the 7^th of February 2009, and therefore shortly after the dismissal from employment from the Applicant, the second in June 2009. In the earlier statement, Ms Taylor said that she had in fact had the conversation with the complainant on the day after the relevant game, that she was visibly upset and explained that Mr Ingall had made inappropriate advances toward her throughout the evening which she did not reciprocate. She said that Ms Irvine became upset because she was concerned that these actions, which she did not reciprocate, may jeopardise her immigration sponsorship. She described this has having occurred in April 2008. In her second statement, Ms Taylor refers to the fact that she reported this to Mr Tayler, the restaurant manager and that she witnessed a subsequent meeting between Ms Irvine and Mr Tayler in which Ms Irvine expressed her concerns about the incident. Ms Taylor had worked at the restaurant as the second chef for a period of two years. She found herself terminated, for reasons that she believed related to the fact that she had conflicting responsibilities toward her children. She accepted that she had looked back to see when the Titans match might have been so that her evidence about the date may be suspect. In cross examination she told of having observed that Mr Ingall would tend to spend a lot more time in the restaurant when Ms Irvine was working. When she left the restaurant, she was replaced by Mr Porter, who came to be Ms Irvine’s partner and the father of their child. Ms Irvine made contact with her after her dismissal, but the immediate reason for that was not to obtain a statement from her. It was not suggested to Ms Taylor that she had either invented the incident concerning the report to her by the complainant or had misunderstood or misconstrued what was being said to her.
Mr Tayler attended the hearing under compulsion and had not previously provided a statement. He had worked at Mermaids for some four years, two years of which as restaurant manager. He had left his employment there in October 2009. Because certain matters which ought to have been put, were not put to Mr Tayler during cross examination, particularly concerning allegations that he made an inconsistent statement to the solicitor for the Respondent, he was required to be recalled so that these allegations could be put.
As to the discussion between Ms Irvine and Mr Tayler he gave evidence that he was invited outside by Jody Taylor and Ms Irvine where upon Ms Irvine described having been subjected to an advance by Mr Ingall, he having touched her in a nature which she felt inappropriate. Part of the discussion, he said, involved what should be the next step for everyone concerned. He said that at the time Ms Irvine was not prepared to make a complaint about the touching, and the touching was the only incident that she had referred to. He recalled also that there was later talk about the fact that Mr Ingall had flirted with her. He said that these were more passing comments that he did not see fit to take further because they were somewhat “jovial” when recounted. As for the incident after the football match, he did not tell anyone about this for a considerable time because the complainant had not wanted to make it “official”. The cross examination of Mr Tayler was not directed to suggesting that none of this had occurred, or that he might have been mistaken as to either when or in what circumstances it had occurred. It was not suggested that he was improperly disposed toward the complainants or held any personal favouritism toward them. Nor was it suggested that he had any gripe with the Respondents. When he was recalled, it was sought to show that he had told the solicitor for the Respondent on or about the 18^th May 2009 that no complaint of harassment had been made to him by Ms Irvine. Ms Miller had been called to say, initially without mention of or reference to any filenote of that conversation, that he had been asked whether there was a complaint of harassment made to him and had said that no complaint had ever been made, that there was a procedure in place for the making of such a complaint, and if there had been such a complaint it would have been raised with Mr Ingall. Surprisingly, Ms Miller initially gave evidence of this conversation without apparently recalling that she had made a filenote of it. The existence of the filenote only emerged after a question to her from the Tribunal later. The filenote was undated, but located in the file in a way which indicated that it was made sometime around the 18^th of May 2009. That is, after the complaint had been made to the ADCQ. She explained that the reason she had not informed counsel of her conversation with Mr Tayler so as to enable him to put this conversation to him when he was initially cross examined was because she was too busy making notes in Court. The filenotes, relevantly provide “O/t Peter Tayler re; statement made by C Irvine 1. Complaint made to him re; sexual harassment by J Ingall. 2. no complaint – would have told Jon if there had been. Why mention you in statement? Don’t know. It’s not true”.
In further cross examination of Mr Tayler, and following a further statement provided by him, it became obvious that he had no recollection of having spoken to Ms Miller on that occasion, having recalled only a conversation in the week of the hearing before me. He refused to accept the prospect that he would have had such a conversation in which he would have told her he had not received the complaint of harassment, because he said he would have recalled that. He had no reason to be untruthful to Ms Miller, he was not intimidated by her, and indeed had had some genuine role with her because of other litigation in which she was acting on behalf of the Respondents.
Mr Tayler gave the impression of being a witness not partisan to either side. He gave the impression of being a person who was honest, and generally professional in his dealings. He is prepared to respect his staff member’s confidences, and understood what Ms Irvine saw as the vulnerable position in which she had been placed. He also took his responsibilities as the restaurant manager seriously, and, as I shall deal with shortly, was prepared to inform Ms Irvine of what he perceived to be her impending termination for reasons which were associated with her pregnancy. He continued on in the employment of the Respondents long after the complainant left, and there is no suggestion that he has any ill feeling toward either party. He made clear in his conversation with the solicitor for the Respondent that he did not wish to be involved in the dispute, and would not provide a statement. That is consistent with his conduct of the complainants, because he would not provide them with a statement either. In general, I accept the evidence of Mr Tayler that a complaint was made to him in the way that he described in his evidence. It is impossible to reconcile the respective versions of the conversation that he had with Ms Miller. Perhaps he misunderstood the questions that were being asked by Ms Miller, or Ms Miller misunderstood the response that he was giving. However, it seems to me that his evidence is also corroborated by Ms Taylor, who initially reported the complaint of harassment by Ms Irvine to him.
I find as a fact that there was an incident of unwelcome touching of Ms Irvine subsequent to a rugby league game which occurred in 2008 that occurred in circumstances in which a reasonable person would have anticipated the possibility that she would be offended, humiliated or intimidated by that conduct having regard to the relevant circumstances. Counsel for the Respondents conceded that if such touching occurred it was sufficient to constitute sexual harassment under the Act. I accept also that within a short time Mr Ingall took Ms Irvine aside outside of the workplace and expressed to her that he had feelings for her. It does not seem to me that such behaviour was taken to be particularly offensive by her or amounted to sexual harassment by itself, but it perhaps explained the conduct which had occurred in the proceeding days.
I have had regard to a number of authorities in which quantum has been assessed in circumstances in which there have been relatively isolated incidents of harassment such as occurred here. Those cases include: Everett v Copperart [1997] QADT 14, Dickie v Newman [1998] QADT 11, Porter v Matson & Locomotive International Pty Ltd [1997] QADT 2, Skellern v Colonial Gardens Resort Townsville & Attlee [1996] QADT 4, Johnson v Gloria Marshall Figure Salons of Australia [1999] QADT 6, Du Bois-Hammond v Ariel, Cole and Raging Thunder Pty Ltd [2004] QADT 27 and Banks v Zivanovic; Lane v Hamilton [2009] QADT 13; Litonjua v Staudinger [2008] QADT 15 and K v Sand N Company [2006] QADT 11.
In most of these cases it can be seen that the range of general compensation has been $5,000 to $10,000 but in K v Sand N Company the harassment was constituted by a statement that the Respondent was falling in love with an employee, and that he would have liked her and her children to move in with him. Mr Forrest assessed compensation in that case in an amount of $2,000. This is a case which I think falls below the higher general range mentioned above because on the findings I have made it was an isolated incident which, although reported to her superior, she was not willing to take any further. No doubt these attentions were unwelcome, however it is reasonable to infer that they did not cause her any particular upset or concern. Nor did they prevent her from continuing on in her job, regularly encountering Mr Ingall and performing her duties responsibly. There is no evidence from any other person to suggest that she was suffering distress while performing her work after that date whilst Mr Ingall was around. In the circumstances I consider it reasonable the sum by way of an award for hurt and humiliation to be an amount of $2,650 inclusive of interest. I order that the Respondents pay to her the sum of $2,650 in respect of her claim under this head.

The case for termination based on pregnancy

As was mentioned in the introduction to these reasons, Ms Irvine also contends that her termination on the 19^th of January 2009 occurred in circumstances which were directly related to her pregnancy. Additionally, there is a claim that there was some denial to her of maternity leave to which she was entitled. But in truth there was no denial of leave because she was terminated before she was due to take that leave. She had notified that she would be taking leave to have her child, but before this leave was either approved or denied, her employment was terminated.
I have already dealt with the circumstances of her visa sponsorship, and the various enquiries which the Respondents, both themselves, and through their staff and advisors conducted in mid to late 2008 about the appropriateness of either entering into a three year sponsorship under the employer nomination scheme, or alternatively continuing with the two year sponsorship under the 457 visa. In final submissions for the Respondents, it was put that there were various issues that might have been concerning Mr Ingall; the claimed threat by Ms Irvine to refuse work over Christmas, her vigorous pursuit of the so called business sponsorship, her assertiveness and the economic downturn. It was apparent that the Respondents were not prepared to pin down the reasons for the termination except to say that “whatever” the ultimate motivations were for her termination, they were not based on Ms Irvine’s pregnancy. That submission itself reveals something about the plausibility of the various versions of events given by the witnesses for the Respondents and in particular Mr Ingall as explaining the basis for the decision. I have already dealt with the evidence of Mr Ingall and Mr Henry’s on this issue.
As of 3^rd November 2008, by which time Ms Irvine had fallen pregnant but had not informed her employer of it, Mr Ingall had written an email indicating that he wanted Ms Irvine to work more hours. This is significant because Mr Ingall swore that he had made the decision in November that it was not possible to continue her sponsorship, and implicitly, that her employment would be terminated, or else she would be converted to a casual employee. He swore that “early on in the piece” Mr Henry had told him that it was not viable financially to continue with her sponsorship. This would tend to place the advice given by Mr Henry as prior to November 2008, and having occurred well before the alleged “blackmail” comprised by the Applicant’s alleged refusal to work on a date just prior to Christmas.
Mr Porter gave evidence, which I accept, that in October 2008 he told Mr Ingall about their relationship, and to which Mr Ingall responded that he had guessed it had been going on for some time.
On 24 December 2008 Mr Porter decided to tell Mr Ingall about the fact that Ms Irvine was pregnant. A meeting occurred at the restaurant that evening. It was in that meeting that Mr Porter said to Mr Ingall that he was aware of the unwillingness of the Respondents to finalise Ms Irvine’s “residency application” and he wanted clarification of that. He then informed Mr Ingall that it was important to Mr Porter because Ms Irvine was pregnant. They then discussed what he called the “residency application”. Mr Porter asked Mr Ingall to avoid stressing Ms Irvine. He was concerned for the effect on the baby and his partner. According to Mr Porter’s evidence, which I accept, Mr Ingall then made the comment that there was nothing personal that would stop him from progressing with the application but that he had not been aware of the process involved when he initially signed the application. This implies that Mr Ingall had recently come to be aware of something of significance which he had not been aware when he had taken on the initial sponsorship. Mr Porter said he was concerned that they may be forced to relocate to Ireland if there was an issue with his partner’s visa, to which Mr Ingall replied that there was no risk. They shook hands on the basis. As Mr Porter understood it, Mr Ingall would do what was necessary to progress her residency application.
On 3 January 2009 Ms Irvine wrote a letter to Mr Tayler, the manager, giving notice that she would be taking unpaid maternity leave commencing from 5 April 2009. She thanked him for his support since commencing her employment on 1 April 2007 and mentioned that she looked forward to her return to employment and “the challenges that lie ahead at Mermaids”. Three days later on 6 January 2009 Mr Ingall replied acknowledging receipt of the application for leave. But then his letter proceeded to deal with new issues that were apparently concerning Mr Ingall. The first was to notify her that there had been a revision of her salary under the 457 visa to $43,440 gross. He insisted that she provide details of evidence of her having medical insurance which he claimed to be a requirement under the 457 visa. In the final paragraphs, he notified her that due to litigation he was not able to supply information that was required for the employer nomination but said whilst that “negates our ability to act as a nominee however we are pleased to assist with other arrangements you may wish to make”. As that letter makes clear, Mr Ingall clearly understood the distinction between the 457 visa and the employer nomination. He was clearly acting in a way which was consistent with acknowledging an ongoing obligation under the 457 visa, but an unwillingness to participate in the employer nomination scheme. Nothing whatsoever implied that he had already determined to cease his sponsorship of her under the 457 visa or indeed to terminate her employment.
Then on 11 January 2009 Ms Hopes wrote to Ms Irvine following up on the requested certificate of insurance and asking that she provide a medical certificate both confirming her pregnancy and advising that she was “fit, healthy and able” to carry out the duties as a floor staff. The requests being made in that letter implied there was an onus on a pregnant employee to provide medical certificates proving that she could perform her duties and demonstrated an intolerant attitude to the continued employment of staff who were pregnant, even those barely out of the first trimester of the pregnancy. Ms Hopes did not explain why she felt entitled to require such a certificate at that time.
On 11 January 2009 Mr Ingall sent an email to the manager Mr Tayler making suggestions on the way in which Ms Irvine could fulfil the 38 hour roster working three 6 hour days and two 10 hour days. The next day Mr Ingall wrote a memo to all staff which referred to the finalisation of a business strategy for the forthcoming year and the ways in which they had discussed obtaining greater efficiencies, one of which was the revision of staffing levels with a rationalisation of balance between permanent and causal positions. Nothing in the letter expressly mentioned the termination of full time staff.
At this time, probably also on the 12^th of January 2009 the Applicants received a phone call from Mr Tayler, the manager, who wanted to speak to them confidentially. Mr Tayler was upset but told them that Mr Ingall had told him that he had received Ms Irvine’s letter notifying of her unpaid maternity leave, but that her visa status did not allow for unpaid leave. He had told Mr Tayler that Mermaids would not pay her during her leave. According to Mr Tayler, whose evidence I accept, he had just had a meeting with Mr Ingall who had told him that under the terms of Ms Irvine’s visa sponsorship, the business was to continue paying her during the planned maternity leave. Mr Ingall had told him that this wasn’t economically viable. Mr Tayler also gave evidence of the conversation in which he notified the Applicants of this whilst they were at his home. Mr Ingall denied ever having spoken with Mr Tayler. But there is objective evidence to show that such a conversation occurred because, as I mentioned earlier, on 13 January 2009 the Applicant had sent a complaint to the Workplace Rights Organisation referring to the recent correspondence she had received about sending medical cover and stating “it wouldn’t surprise me if he attempted to terminate my employment next”, and requesting advice. It did not specifically mention the source of her concern about that.
Then, without any previous notice of his intention in that regard, on 19^th January 2009 Mr Ingall wrote to Ms Irvine advising her that he was giving her 28 days notice of the termination of her 457 visa. There are two letters of that day. There was also a meeting that day which was arranged by a phone call from Ms Hopes to Ms Irvine. Mr Porter and Ms Irvine were both present at that meeting which occurred at 10am that day. Mr Ingall explained that he would no longer be committing to her 457 visa due to the current economic situation and that he was terminating her employment. When asked whether he was sacking her because she was pregnant, Mr Ingall did not answer but mentioned the current economic climate. Mr Porter asked if the notice was in writing. Mr Ingall replied that it wasn’t but it could be picked up in an hour. Ms Irvine was noticeably upset, and as they were leaving Mr Porter audibly told one of the other staff members that “he has just sacked a pregnant woman”. Mr Porter came back an hour later to pick up the termination letter, which Ms Hopes gave him. When asked what she thought of the situation, Ms Hopes declined to comment but Mr Porter then made a comment that this would “bring the house down”, meaning that it would adversely affect all of the staff morale if they knew about this. Much was made of this comment in the Respondents’ case. It was sought to suggest that this was actually a statement which implied that he was about to try to bring down the Respondents’ business. In due course, Mr Porter also had his employment terminated. But that did not occur for some time, and certainly did not occur at the time of the making of this statement.

The letter which Mr Porter came back to collect that day specified that the decision had been made not to continue with her 457 visa sponsorship and went on to explain that because of the withdrawal of that sponsorship, her employment “must also be terminated”. She was given 7 days notice in that letter, a change from the 28 days mentioned in the other letter of the same date. That letter made no mention of any economic circumstances said to justify the decision. The approach taken in that letter is in stark contrast to the letter which had been written to her eight days earlier.
I am satisfied on the evidence the decision to terminate both her visa sponsorship and her employment was made because the Respondents, probably erroneously, in the belief that unless she was terminated, she would have been entitled to take maternity leave in circumstances in which the business would have been required to continue paying her. I accept that the decision in that regard had been communicated by Mr Ingall to Mr Tayler prior to 12 January 2009, and that he had communicated this to the Applicants shortly thereafter. The only respect in which her employment was financially unviable, in the sense that the Respondents used that expression, was that it was in their view unviable to pay her whilst on maternity leave. Therefore, in my view, the termination occurred because of her pregnancy and in those circumstances the Respondents discriminated against her contravention of section 15 of the Act.
She is entitled to be compensated for unlawful conduct. Not only did she suffer distress and humiliation at the time of her termination, but she then went through a period of considerable uncertainty about her status as a resident of Australia. She describes feelings of worry, anxiety, stress, broken sleep and nightmares. She has suffered some level of depression. Although the description of the consequences of the termination upon her is abbreviated, in my view it is clear that she was forced to suffer considerable anxiety for the period leading up to the birth of her child, and since, in consequence of the unlawful termination of her employment. I have had regard to the following comparative decisions in forming a view as to the quantum of such compensation; Du Bois-Hammond v Raging Thunder Pty Ltd and Others [2004] QADT 27; Everett v Copperart Pty Ltd [1997] QADT 14, Dickie v Newman [1998] QADT 11, Porter v Matson & Locomotive International Pty Ltd [1997] QADT 2, Skellern v Colonial Gardens Resort Townsville & Attlee [1996] QADT 4, Johnson v Gloria Marshall Figure Salons of Australia [1999] QADT 6, Foran v Bloom [2007] QADT 31; Chapman v Graham, Graham and Danacourt Pty Ltd [2008] QADT 18; Roberts v King [2009] QADT 3 and Banks v Zivanovic & Ors [2006] QADT 43. I assess compensation for the emotional consequences upon her of the termination at $15,000. Upon that I allow interest for one and a half years at 4%, an amount of $900.
She has suffered economic loss through to the date when she would have taken her unpaid leave in an amount of $33,147.60. The Respondents’ written and oral submissions take no issue with that figure. I would allow interest on that for a period of one and a half years at 8%, rounded up to an amount of $4,000. Since the birth of her child on 15 August 2009 she has gone on to have a second child and has not returned to the workplace. In the circumstances there is nothing to suggest she suffered economic loss after the date when she would have taken her maternity leave on 5 April 2007. Her total compensation for the discriminatory conduct then, including interest is assessed as $53,047.60 and I order that this be paid to her by the Respondents.

The claim by Mr Porter

Within two days of the termination of Ms Irvine on 19 January 2009, Mr Porter’s employment as head chef at Mermaids was also terminated. That was affected by letter issued to him on 22^nd January 2009. He too was given 7 days notice. For Mr Porter it is contended that his termination was part of an “orchestrated campaign” that was directly associated with his having been in a relationship with Ms Irvine. Unlike the position with Ms Irvine, apart from that of 19 January 2009, there was no correspondence directed to Mr Porter which suggested that his employment was under threat. As I have already mentioned, there may have been some developed animosity toward him by Mr Ingall arising out of the perception by Mr Ingall that in some way Mr Ingall had been blackmailed prior to Christmas by perceived threats by the Applicants not to turn up for work unless the sponsorship application was supported. I have also mentioned already the audible comment made by Mr Porter on the day of his partner’s termination in which he made a comment to the effect that the termination of Ms Irvine would bring the house down. It seems that Mr Ingall had this statement reported to him and took a very serious view of it. This was despite the fact that Mr Porter held a very senior position at the restaurant, his appointment letter having described him as the executive head chef. It was his responsibility to ensure the smooth, efficient and profitable operation of the kitchen, and co-ordinate front of house with the restaurant manager. He was paid approximately $84,000 per annum, a component of which was to be paid in cash. On the 19^th of January 2009 Mr Ingall wrote to him referring to what had been construed as the “damaging comments” he had made when he picked up the termination letter for Ms Irvine. Mr Ingall’s letter then said that he had made these comments emotively and reminded him that his relationship involvement with Ms Irvine had nothing to do with his responsibility as an employee and that his responsibilities included not taking any action that would undermine or damage the business. This apparently included not making any comments adverse to his employer’s decision to terminate staff on the basis of pregnancy. He was asked to liaise with Mr Tayler before he resumed his next shift two days later. Mr Porter responded to that letter in an email the same day in which he pointed out that he took pride in his profession and was fully aware of his responsibilities. He denied that he had made damaging comments and suggested that to say otherwise was defamatory. He threatened action if there were defamatory remarks made about him, but invited Mr Ingall to discuss these matters with him personally.
Mr Porter sent another email the next day which he sent having given “further reflection” to Mr Ingall’s 19 January 2010 letter. He pointed out that Mermaid’s position on staffing was causing unrest and stress amongst the staff, and that a number of employees had told him they felt insecure about the business and their future employment there. He was reminded that it was Mr Ingall’s duty to make sure the business complied with industrial relations laws and the tax laws. He suggested that any terminations would be, in effect, upon the head of Mr Ingall. In response Mr Ingall sent an email suggesting Mr Porter take the day off the next day due to the heated circumstances of the past few days. Mr Porter responded that he was unaware of any heated circumstances that would prevent him from performing his duties and that if he was not permitted to perform his duties it would be on the basis that he would be paid his full wage rate. Mr Ingall responded that he would be required to take the rostered day off that was owed to him, and that it would be at the employee’s cost of a rostered day off.
Without any further communication, the next day on 22 January 2009 Mr Ingall gave him notice terminating his employment, purportedly on the basis that he had “threatened the operation of the business” on the 19^th of January 2009. The letter mentioned that there were no other issues with the performance of his duties. Both the timing of the termination, and the correspondence sent and received in that period out of the termination of Ms Irvine showed that the real basis for the decision to terminate Mr Porter was not any association he had with Ms Irvine, but probably a serious overreaction to or misunderstanding of comments which had been made by Mr Porter to some staff. Mr Porter demonstrated a relatively responsible approach to the whole incident and insisted he be entitled to perform his duties as rostered. His employer was not prepared to permit this to occur and probably decided that Mr Porter was just too much of a trouble maker in the circumstances, particularly where there was the possibility of either litigation for defamation, or problems with the tax office, or complaints to industrial relations authorities. It seems to me therefore that there is no factual basis for a conclusion that his termination was by reason of his association with Ms Irvine. Nor for that matter does it seem to me to have been termination amounting to his victimisation within the terms of section 130 of the Act because the evidence does not support the conclusion that the termination was related to any complaint concerning the discrimination based on pregnancy to which Ms Irvine had been exposed.
Primarily, if not entirely, the claim which he made for compensation was for economic loss associated with his having been terminated. Having lost that job, he came to secure alternative employment relatively quickly after his termination but was not paid and has not been paid since at a commensurate level to that which Mermaids would have paid him. A summary of his loss of earnings was tendered, that showed that he sustained a loss of $73,577.27 to date. Had I upheld the claim which he had made, I would have assessed compensation in that sum, and allowed interest upon it breached to a rate of 4% for a period of one and a half years. I dismiss the complaint of Mr Porter.
I will relist the matter on a date convenient to the parties to hear submissions if any as to costs, or any other matters that remain outstanding. The parties have liberty to apply.