James v Tracz
[2013] NSWADT 161
•18 July 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: James v Tracz [2013] NSWADT 161 Hearing dates: 27, 28, 29 May 2013 and 7 June 2013 Decision date: 18 July 2013 Jurisdiction: Equal Opportunity Division Before: C Huntsman, Judicial member
A Lowe, Judicial member
J Schneeweiss, Judicial memberDecision: The application is dismissed
Catchwords: Sexual harassment in employment Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: James v Wild Food Highlands Pty Ltd [2012] NSWADT 111 Category: Principal judgment Parties: Lauren James (Applicant)
Robert Tracz (First Respondent)
Deborah Roach (Second Respondent)Representation: Counsel
Ms Tibbey, (Applicant)
Mr Crosslands (Respondent)
Legal Aid Commission of NSW, (Applicant)
File Number(s): 121002
REASONS FOR DECISION
Background
This was an application by Ms James, the applicant, alleging sexual harassment in employment by the first respondent, Mr Robert Tracz. Mr Tracz was executive chef where the applicant worked as apprentice chef/second chef. At the time of the alleged sexual harassment the employer of both Ms James and Mr Tracz was Wild Food Highlands Pty Ltd.
The Director of Wild Food Highlands Pty Ltd was Mr Peter Roach and Ms Debbie Roach is his wife. The applicant alleges that sexual harassment was permitted by Ms Deborah Roach, the second respondent.
Ms James made a complaint to the Anti-Discrimination Board on 28 April 2011 about the alleged sexual harassment. In her application she stated, in answer to the question "who do you think has discriminated against you?" - "Robert Tracz and Debbie and Peter Roach". In answer to a question about their relationship to her, she answered "executive chef/employer/boss". In an answer to a question about who the head of the organisation was, she stated "Debbie and Peter Roach" and gave their position as "employers".
When the Anti-Discrimination Board referred the complaint to the tribunal the respondents were named as Wild Food Highlands Pty Ltd and Mr Robert Tracz. Around this time the respondent, Wild Food Highlands Pty Ltd, was placed under administration. The applicant applied to join Ms Debbie Roach as a party to the proceedings. As detailed in the Reasons for Decision for the tribunal's Order to join Ms Roach as a party (refer James v Wild Food Highlands Pty Ltd [2012] NSWADT 111 (7 June 2012)), it is the applicant's contention that Ms Roach was in charge of the workplace, that she knew of the alleged sexual harassment and permitted it to occur. The applicant contended that Ms Roach was liable, pursuant to the aid and abet provisions of s52 of the Anti-Discrimination Act 1977 (the AD Act).
The tribunal joined Ms Roach as a party and the applicant subsequently withdrew proceedings against Wild Food Highlands Pty Ltd ("Wild Foods").
Evidence indicated that shares in Wild Food Highlands Pty Ltd were held beneficially by Centurcorp Retail Pty Ltd (currently under administration) and that shares in that company are held by Peter Roach and Debbie Roach.
The period of the complaint, as referred by the Anti-Discrimination Board, is October 2007 to April 2011.
The applicant started work at Wild Foods in about October/November 2007 (the applicant states she commenced in October 2007 and the first respondent states in November 2007). The applicant commenced work as an apprentice chef and during her employment became second chef. The business consisted of a cafe, deli, and shop.
As executive chef and person in charge of the kitchen, Robert Tracz was direct supervisor of the applicant in the workplace. The applicant ceased working at the business in April 2011, her last day of work was 8 or 9 April 2011.
The applicant, early in her employment, was enrolled in Commercial Cooking at TAFE however she failed a number of courses in her first year. She states that Mr Tracz discouraged her from continuing to attend TAFE saying she could become a chef without the TAFE qualification. Mr Tracz says that he did have a conversation that one could qualify as a chef without TAFE qualifications but denied that he discouraged her from continuing to attend. The applicant later returned to her TAFE studies and completed the qualification.
During the period of the applicant's employment Peter Roach was director of the company which owned the business. For a period of time Deborah Roach worked as supervisor of the cafe. There is dispute in this matter about the number of hours worked by Deborah Roach and her role in the business.
The applicant claims that during the period of her employment Mr Tracz behaved in a sexual way towards her, making sexual comments and touching her sexually, and that this was unwelcome and was sexual harassment. Mr Tracz denies that this occurred, as does Deborah Roach and other witnesses for the second respondent. A witness for the applicant, Jesse Streeter, was employed as a dishwasher for some of the period that the applicant worked at the business. Mr Streeter states that he saw Mr Tracz "grope" the applicant, and that he was sexually propositioned by Mr Tracz. The evidence relating to these matters is further detailed below.
The applicant claims that due to the sexual harassment by the first respondent, Mr Tracz, she has suffered psychological damage, and actual economic loss through loss of wages, and she makes a claim for damages consequent upon the sexual harassment. The applicant claims that the second respondent, Ms Roach, knew of the sexual harassment occurring and permitted it to occur and is therefore liable for the sexual harassment under section 52 of the Anti-Discrimination Act (the AD Act).
The first respondent, Mr Tracz, and the second respondent, Ms Roach, deny that the sexual harassment occurred. Ms Roach also disputes any liability under s 52 of the AD Act.
The evidence
The applicant's evidence included three affidavits and oral evidence at the hearing; an affidavit and oral evidence by Jesse Streeter; affidavit evidence by Mr James, father of the applicant; medical and psychological reports including a report of Dr Bridge, (General Practitioner), Ms Gagliardi (Clinical Forensic Psychologist), Ms Nasser (Clinical Psychologist), and Dr Murphy, (Consultant Psychiatrist). The applicant also provided records of wages and medical costs.
The first respondent gave oral and affidavit evidence, as did the second respondent. Witnesses for the second respondent, Ms Young and Ms Wilford, gave affidavit and oral evidence.
There was considerable evidence addressing the issue of whether Deborah Roach had control in the business, whether she was a figure of authority, whether she had any decision making and/or supervisory role. Such evidence was directed at establishing (or refuting) that she was in a position to prevent the alleged sexual harassment, and that any failure to do so indicated that she permitted the alleged harassment to occur. Evidence was elicited by the applicant, with a view to establishing that Ms Roach would have known of the alleged harassment, such as evidence about the visibility of the kitchen area from the café where Ms Roach at times worked. Whilst there is dispute about her role in the business and hours of work, it is agreed by the second respondent, Ms Roach, that she at times worked in the café and she also acted as café manager after the departure of the manager, Mr Sneddon.
The position of the applicant was that Ms Roach was the "boss" and in control, that she knew of the harassment and permitted it to occur. The position of the second respondent was that she did not permit the harassment, she was not the manager or in a supervisory capacity in the business, or in the kitchen, and did not have authority, and further that the harassment did not in fact occur.
Before considering the issue of whether the second respondent, Ms Roach, permitted sexual harassment, the tribunal must firstly be satisfied that the applicant has established that the first respondent sexually harassed her in breach of the Anti-Discrimination Act. The tribunal will determine this issue, before considering the evidence relating to the role of Ms Roach.
The evidence about sexual harassment
The applicant, Ms James, provided evidence about alleged sexual harassment by Mr Tracz in the workplace. Ms James' evidence was that on each shift there would generally be three people working in the kitchen and Robert Tracz would not work every shift. She states that from the time she commenced work Robert Tracz would make comments to her of a sexual nature on a daily basis. She cannot specify the dates for specific comments and conversations due to the number and frequency.
Ms James states in her affidavit evidence that comments made by Mr Tracz included "what kind of bra are you wearing?" "Do you like threesomes?" That Mr Tracz held up a zucchini and said "would you take that on?". That his other comments included: "The only reason I hired you was because you have big boobs and a nice ass". She stated each time he would make a sexual remark, or brush past her without reason, or touch her, she would say words to the effect of "stop it" or "I don't like it" or "can you not do that".
Ms James provides further detail of being asked whether she had ever done the pencil test, and that Mr Tracz asked her how many pencils she could fit under her boobs without holding them. She says she told him she would not discuss that with him. She says he would regularly talk about his sexual behaviour with other women. She would tell him to stop it but he would just laugh. She said in 2010 she saw Robert Tracz put his hands down the top of another worker, Amy, and when he did this she (Ms James) kicked him in the shins. She says she saw Robert Tracz do and say things of a sexual nature to other staff members on many occasions and during the whole period of her employment Mr Tracz would also do things of a sexual nature to her.
Ms James states that on several occasions when she was in the cool room, which is very narrow, he would walk past and brush against her without any need to do so, grabbing her around the waist as he went past. One time he said "you know I don't wear any undies?" And she said "Eeww, get away from me" and he laughed and said "do you want to feel that I don't wear any?"
Ms James alleges that on many occasions Mr Tracz used to pull out her top and looked down to see what bra she was wearing. Whenever he did this she would make comments to the effect of "please don't do that, I don't like it". She states that when looking at her bra he would often ask her what size bra she was wearing or make comments that the bra was a nice colour. On several occasions, when she was bending over he would reach down and pull her underpants up making a comment such as "it's okay, I'll hold them for you". On one occasion when he did this, Deborah Roach walked into the kitchen area with dirty plates and when she saw what was happening she laughed and walked away and did not show disapproval or take any steps to discipline him.
Ms James also states that Mr Tracz would persistently ask her questions about her personal life and want to know what she was doing. She states that Debbie Roach would stand at the opening between the kitchen and cafe area where it is possible to view the food preparation area (known as "the pass") and that she would have been able to see and hear what Robert Tracz said to the applicant on about 80 per cent of the occasions. Ms James says she would look towards Debbie Roach to support her and Ms Roach would shake her head and walk away, and take no steps to indicate disapproval or discipline Mr Tracz.
Ms James gives evidence that during this period she was diagnosed with glandular fever and needed time off work. As a result of Mr Tracz's behaviour she began to feel depressed about going to work and would cry on the way home from work. She began to experience nightmares from 2009 onwards, which became worse toward the end of her employment. She started to drink alcohol to excess on her nights off, from around the end of 2008. On 7 April 2011 she went to see her family doctor, Dr Bridge, and told him she was getting chest pains, dizziness, nightmares, feeling shaky and finding herself crying. She told him what was happening at work and he prescribed her some medication and recommended she seek legal advice.
Ms James states that on 8 April 2011, when she she picked up some supplies and Mr Tracz said to her aggressively "we can get these things delivered". She became upset during the conversation and at his aggressive reaction. She subsequently told her family, the Apprenticeship Board was contacted and a person from the Board came to the business. She saw Dr Bridge again on 9 April 2011 and that was her last day of work. Dr Bridge referred her to Esme Nasser for counselling and she completed six sessions over a period of about four months. She was given another referral to see the psychologist but was not able to attend further sessions because of work and study commitments.
Ms James states that she looked for work after leaving her position at Wild Foods but was unable to obtain work until July 2011 when she obtained casual employment as a waitress. She did not look for jobs working in the kitchen because of the sexual harassment she experienced when working with Robert Tracz. On one ocassion she did cooking work for a couple of days in the kitchen, where she worked as a waitress, when they were short staffed, it made her very anxious and brought back bad memories. She was offered a full-time position as a chef in about September 2011 but refused because she was experiencing anxiety on a continuing basis at the thought of working in the kitchen again. The pay rate for a qualified chef is higher than the amount she earns as a waitress. She says she no longer wishes to work as a chef despite completing her TAFE qualification and is currently studying medical administration part-time.
Ms James also gave evidence about working hours and other conditions of work, however this evidence does not assist the tribunal to determine whether the sexual harassment occurred.
In her application to the Anti-Discrimination Board Ms James detailed the harassment consistently with what she detailed in her affidavit, with the exception that an additional matter was alleged, being that "One day he asked me to go into the freezer and have sex with him. I believe that was last year. I just ignored it and didn't say anything. I felt as if I could not say anything as he is my direct boss and he works very closely with the owners, Debbie and Peter Roach". It was put to the applicant in cross-examination that this was a very serious allegation and she agreed. It was put to her that it should have been included in her affidavit evidence and the reason it was not included was that it did not occur. Ms James indicated her view that it was all one process (the application form and her affidavits).
The applicant's witness, Jesse Streeter, states that he worked from 23 August 2010 until 30 June 2011 at Wild Foods Cafe and during this time Robert Tracz was head chef. Mr Tracz behaved in an intimidating and bullying manner and would regularly make jokes and comments of a sexual nature. He would touch Mr Streeter on the bottom as he passed him, he told him that having a sexual relationship with another male would open up his world. Mr Tracz denies making this statement. Mr Streeter states that Mr Tracz would press up against his body in the kitchen. He states he always tried to avoid reacting to Mr Tracz's behaviour because he believed Mr Tracz always had the full support of Debbie Roach. Mr Streeter worked in the kitchen with Ms James for approximately 2 shifts per week. "On several occasions I saw Robert Tracz groping Lauren's breasts with his hands. When this occurred Lauren would express disgust and physically back away. On several occasions I heard Robert Tracz say to Lauren comments such as "your breasts are looking perky today". Mr Streeter states he stopped working at Wild Foods because he had enough of Robert Tracz's behaviour.
Under cross-examination Mr Streeter agreed that he did not leave the workplace on good terms. He agreed that at the time of leaving he was angry at Mr Tracz in particular. He did agree that he walked off the shift when he resigned and that he was angry. He agreed that at this time he had just been advised that his shifts had been reduced, but disagreed that this was the reason for leaving, stating it was just the last straw.
Mr Streeter agreed that the cafe was often extremely busy and very noisy when crowded and it was hard to hear things sometimes even in the cafe area. Mr Streeter agreed with the suggestion that if a staff member was standing in the cafe at the pass looking into the kitchen they couldn't hear what was being said in the kitchen.
Mr Streeter gave oral evidence that he saw Mr Tracz groping Ms James on her breasts - his hands on her breasts for a few seconds - and that Ms James stood still for a few seconds while it happened.
Mr Tracz stated in his written affidavit that the sexual harassment did not occur. He maintained this also in his oral evidence and did not move from this position during cross-examination. He states he commenced employment with Wild Foods as Executive Chef on 17 August 2007 and remained employed until 29 February 2012. He states he has been a chef over 30 years and during this time has overseen the training of approximately 25 apprentices. He states that Ms James, the applicant, commenced her apprenticeship on 7 November 2007 and commenced work on a first year apprentice salary. He made the applicant second chef after she failed her first-year of TAFE studies and needed money to pay for the loan of her car. She was a good worker and he says he tried to reward that fact with pay increases.
He states he never touched her underwear or looked down her top. He states at times her dress sense was inappropriate for the workplace and he would comment on the fact that underwear was showing as that was inappropriate. He asserts that he only commented about the applicant's bra was when it was showing and it appeared to be inappropriate dress for work. Mr Tracz also stated that that the applicant wore clothes on occasion which revealed her underwear.
He states the kitchen is small and it is hard not to bump into someone or brush past when performing normal duties. He denies making the sexual comments which the applicant alleges were made.
Mr Tracz details an occasion when Ms James returned from a holiday in Bali and gave a gift of a large wooden penis to the cafe manager. Mr Tracz states she passed this around the kitchen making inappropriate gestures. The applicant agrees she bought this present for the cafe manager, who she says was gay, as a joke, but says she did not give it to him in the workplace but gave it to him at a social function outside of work.
Mr Tracz denies putting his hands down Amy's top and that the applicant kicked his shins. He states he did not do things of a sexual nature to the applicant. He denies rubbing up against the applicant, pressing himself to her, and he says he never pulled out her top to see her bra. He states that this is not possible with the work uniform in any event, as they are high necked. He says he never pulled up Ms James underpants or touched her in any way while she was bending down. He stated that he and Ms James worked well together and were a good team.
Mr Tracz gave evidence of his understanding that Ms James terminated her apprenticeship after she failed her first-year at TAFE.
He states he often supported the applicant with troubles in her life, for example, writing a letter to the court to assist her in relation to a speeding offence amongst other matters. The applicant does agree that he wrote a letter to support her with speeding offence.
Mr Tracz states that on 8 April 2011 the applicant did not go out to pick up supplies, rather he did. On return he did say "you know they will deliver this to us" and states the applicant then exploded verbally at him saying she wouldn't put up with this anymore. He states that her last day at Wild Foods was Friday, 8 April 2011.
Mr Tracz denied the allegations about making sexual comments and sexual touching or inappropriate touching, and when it was also put to him that there was pornography in the cool room he strongly denied that this was so.
In relation to the applicant's witness, Mr Streeter, Mr Tracz says Mr Streeter was employed from 23 August 2010 until 2 February 2011, not 30th of June 2011 as is stated by Mr Streeter. He worked as a kitchen-hand. Mr Tracz denies that he made the sexual comments as alleged by Mr Streeter. He states that Mr Streeter exaggerated his term of employment and that Mr Streeter in fact left the business in a hostile manner on the week ending 2 February 2011. Mr Tracz states that the hostile manner was that Mr Streeter resigned mid-service, and at the time was shouting and swearing. This occurred when Mr Tracz advised Mr Streeter that his casual shifts had been reduced to provide for a full-time kitchen hand position. Mr Tracz alleges that Mr Streeter yelled, for all the kitchen and cafe to hear, "fuck you and your fucking shifts" and exited the café leaving work prior to the end of the shift. Mr Tracz states that Mr Streeter continued to visit the cafe talking to staff after his resignation, however he has not done so since providing his affidavit for these proceedings.
The applicant provided a written affidavit specifically dealing with Mr Tracz's written evidence. She denied she wore inappropriate clothing to the workplace, she states the uniform she wore was a chef's jacket that buttons all the way up to the neck, and she also wore chef's pants which were loose with a drawstring. She states it is not possible to see a bra through the chef's jackets as they button all the way up to the neck. The only way to see the bra is to physically pull the shirt away from her chest. Occasionally she would wear a black Wild Foods Tshirt, provided by management, which was also highnecked, and which also was not see through.
The applicant agrees that the kitchen was small but states that Mr Tracz nevertheless intentionally rubbed against her. She states the same in respect of the cool room. She states the presence of other people in the kitchen (there was usually at least one other apart from herself and Mr Tracz) did not stop Mr Tracz from saying or doing things of a sexual nature to her.
Under cross-examination the applicant was shown photographs of social evenings, which were held with workmates outside of the workplace. It was suggested that in the photographs she appeared to be socialising in a light-hearted manner with Mr Tracz. It was put to her that she would not appear so, if she was frightened of Mr Tracz, and she disagreed indicating she had no choice but to interact on a work evening out.
In her oral evidence the applicant detailed the incident with the other worker, Amy. She stated that she saw Mr Tracz pull out Amy's top and look down her top and Amy said "don't do that". Ms James then kicked Mr Tracz in the shins. In her written affidavit Ms James stated that Mr Tracz put his hands down Amy's top. Under cross-examination it was put to Ms James that she had not said, in oral evidence, that he put his hands down the front of Amy's T-shirt. Ms James agreed under cross-examination that Mr Tracz did not put his hands down the front of Amy's T-shirt. It was noted that she had said this did occur in paragraph 25 of her written affidavit, and it was suggested to her that her evidence in that written affidavit was false. Ms James agreed she had embellished her evidence in that part of her written affidavit. She said that she had embellished " to some extent". It was put her that the extent was to state that Mr Tracz had put his hands down Amy's top when in fact he had not, and Ms James agreed. She indicated she was not aware of any other things in her evidence that were embellished.
The tribunal observes that Ms James gave the account of Mr Tracz putting his hands down Amy's top in paragraph 25 of her initial affidavit and also in paragraph 23 of her affidavit of 9 May 2012 (an affidavit stated to be in response to Mr Tracz's affidavit). In paragraph 23 of that affidavit she notes Mr Tracz's denial and states "Mr Tracz did in fact put his hands down [Amy's] top.."
It was put to Ms James that she told Dr Murphy, Consultant Forensic Psychiatrist, that she had no history of substance abuse yet in her affidavit she referred to binge drinking. It was also put to her that she told Dr Murphy that she intended to continue working as a chef and was applying for Chef jobs. However, in her affidavit she states she was unwilling to work as a chef after leaving Wild Foods. Under cross-examination Ms James indicated that the part of Dr Murphy's report, about her intention to work as a chef, must be wrong.
Ms Pamela Young gave evidence that she commenced work for Wild Foods on 4 October 2007 as the deli manager. She left this position on 9 June 2011, of her own accord, to take up a position with less work hours per week, as deli manager at a local supermarket. She is now 67 years of age. She details her previous experience in the hospitality industry, for more than 35 years, as including as a business owner of a hotel, and a mixed business, employing 14 staff, and individually managed up to 10 staff in her various roles.
Ms Young states that she had previously worked with Mr Tracz at the Country Club. She found him to be a professional chef, demanding a high standard of work, but always fair. She worked on the kitchen roster during her time at Wild Foods with Ms James, Ms Wilford, and other workers including Jesse Streeter and Mr Tracz. Ms Young said that Ms James would often complain to her about things, and she would be "an open ear". However Ms James never complained about sexual harassment in the time they worked together.
Ms Young detailed her prior work experience in staff management and acceptable standards of behaviour at work. She states that during her employment at Wild Foods she never witnessed any behaviour by Robert Tracz or any other staff member that she would deem sexual harassment, or bullying, and never witnessed such behaviour towards Ms James. She recalled having to talk to one of her junior staff about her standard of dress because this worker did not like wearing the café uniform T-shirt, and preferred her own low necked tops, which Ms Young considered inappropriate. She gives evidence of Ms James sharing confidences and stories in the workplace, very openly, things Ms Young would not have discussed in the workplace. Ms Young details Ms James being promoted to second chef. Ms Young's opinion was that Ms James' work performance deteriorated from its previous high standard towards the end of her time at Wild Foods, this would have been from early 2010 onward.
Ms Young recalls Ms James bringing back gifts from her Bali holiday including a bag for Ms Young and a large wooden penis for the café manager which was passed around at work. Ms Young considers that she had a close working relationship with Ms James. She states that Ms Young never raised sexual harassment with her, nor did Ms Young observe the same occurring in the workplace. She does recall on one occasion, just prior to her departure from the workplace, that Ms James did say about Mr Tracz "he is such a bully" . Ms Young states that she did not know at the time what the comment was about but did see that Ms Jones was crying and went to the bathroom.
Ms Young states that in the week before Ms James left in April 2011 she said to Ms Young, in regards to the issues of trying to get her apprenticeship and TAFE studies back on track, that "dad said he wasn't going to let this slide and he would see it through". Ms Young states Ms James approached her in about December 2011 seeking her support in legal proceedings, asking Ms Young to support her wrongful dismissal claim. Ms Young said she told Ms James that she didn't know enough about it, and wouldn't support her. Ms Young said that sexual harassment was not mentioned in that meeting with Ms James.
In her oral evidence and under cross examination, Ms Young denied that she had ever witnessed Mr Tracz behaving in a sexually inappropriate or sexual manner in the workplace, not at the prior work place at the Country Club nor with Ms James or any other workers at Wild Foods. It was put to her that Ms James did talk to her about sexual harassment in the workplace and Ms Young was very firm in stating this did not occur. She was clear in her evidence that the wooden penis was given to Mr Sneddon at the workplace and not at a social function - she is sure of this because at the same time Ms James gave her a handbag, so she clearly recalls where it occurred.
Ms Young was asked to describe Ms James as a worker and said she was a very good chef, very fast and very good at her work. Ms Young did hear some altercations between Mr Tracz and Ms James, some raised voices, from both of them.
Ms Young was very firm in stating that Ms James had never told her about sexual harassment in the workplace. Despite it being put to her several times during cross-examination that Ms James had told her of sexual harassment Ms Young gave firm evidence that this had not occurred. She said she would recall something like that.
When asked what she meant by stating that Ms James was not such a good worker at the end of her time working at Wild Foods, Ms Young said she wasn't as prompt, she did not do the same level of preparation or cleaning up. Ms Young said that Ms James was a very good cook and would recommend her in that regard, and agreed she had written Ms James a reference. Ms Young was asked whether there were often a lot of rumours in the workplace, and she stated that of course this was so because they worked in the hospitality trade.
Ms Wilford stated that she commenced work with Wild Foods as a cook on 11 May 2009 and remained employed by Wild Foods until 29 February 2012. She has remained in the employ of the business which has taken over from Wild Foods (it was indicated in the proceedings that the business continued to be run/owned by Mr Roach). She noticed that Ms James was more upset in the workplace from the end of 2010 until early 2011 and that there were disagreements about her returning to TAFE and about her wages. Ms Wilford said that Ms James started talking to her about how she was going to "take them down". She also said she was "building it up to leave" . Ms Wilford gave evidence of other things said by Ms James including "if I tell my dad will follow through and take them to the cleaners... I will take them for everything I can get"
Ms Wilford states she has reviewed the affidavit of Ms James. She states that at no time did Ms James tell her that Mr Tracz behaved in the manner described in her affidavit. Nor did Ms Wilford witness any behaviour by Rob Tracz towards Ms James which was sexual in nature, although Ms Wilford worked in the kitchen.
Ms Wilford states she was approached subsequently by Ms James and asked if she would provide a statement in support of Ms James, and she told Ms James that she had not witnessed Ms James being picked on and so could not help her. She said she had nothing to say. She said that Ms James never said to her that she was being bullied, harassed or picked on. If it was occurring Ms Wilford believes Ms James would have told her, because Ms James told her lots of things that were happening in the workplace. Ms Wilford said she never saw any sexual harassment.
The allegations that Mr Tracz pulled out Ms James' top and looked at her bra, and made sexual suggestions in relation to a zucchini, were put to Ms Wilford, and she stated that these matters did not occur. In relation to her evidence that Ms James said she was "building it up to leave" Ms Wilford agreed that this occurred two years ago and she did not have a word for word recollection. She also recalled Ms James being unwell but said Ms James did not tell her what was wrong with her. She indicated she enjoyed working with Ms James.
Ms Deborah Roach gave detailed evidence a lot of which went to her role in the business but she also gave evidence that she had never observed the sexual harassment detailed by Ms James, and that no-one had told her of this occurring.
Dr Murphy, Consultant Psychiatrist, gave oral evidence by telephone. Dr Murphy's report was prepared for the workers compensation insurer of the employer. The date that Dr Murphy saw Ms James was 4 May 2011 and his report reflects her presentation on that date. This was within one month of her departure from the workplace. He agreed that he had conducted his assessment of Ms James in the presence of Ms James' "supportive boyfriend who sat quietly through the interview but occasionally jogged her memory on an important point". Dr Murphy stated it was not unusual for people to have a support person attend the assessment; because they can be anxious about the process they are advised in the letter that they are able to bring a support person. Dr Murphy told the that he saw the applicant in his rooms on one occasion for the purpose of preparing the report. His practice is to spend an hour interviewing the patient and he uses a dictaphone to do the report as soon as the patient leaves the room. If he quotes what a patient has stated, in his report, he usually has made a note at the time of the interview. If Ms James had told him anything else about what occurred in the workplace he would have put it in his report. He would have prepared his report within seconds of her leaving the room and he does try to use the patient's words in his report. He agreed that it would come from Ms James when he said in his report:
"she said her attention and concentration is good and that she functions well in the TAFE environment. She feels up to working in a different job and has been applying for positions."
Dr Murphy details her report of sexual harassment as:
"he talks about sexual things, tries to push it onto me. He brushes past me, grabs me around the waist and rubs his genitals on me. If I'm bending over I hold of my pants to make them stay up and he'll tell me to let them fall down. He even pushes my hands away so I can't hold my pants up. He opens the top of my blouse and says 'that's a nice bra, how many pencils can you hold under your breasts'?" He stares down my cleavage while he is doing this. He admitted another employee's boyfriend wanted to fight him for doing the same stuff"
Dr Murphy makes a diagnosis of Major Depressive Disorder Single Episode with an alternative diagnosis of Adjustment Disorder With Mixed Anxiety and Depression. He noted she needed a different supervisor in the work place and would be uncomfortable continuing work under Mr Tracz. He notes that Ms James:
intends to work as a Commercial Cook after graduating from TAFE at the end of the year. She is making adequate progress at TAFE and is receiving good grades and positive feedback from her supervisors.... She has already been applying for similar positions in an alternative workplace and I am of the view that she could perform the full pre-injury duties, in an alternative workplace, within two weeks".
Dr Murphy's expressed expectation is that she will make a full recovery and be able to continue as a commercial Cook. He is of the opinion that the predominant cause of the depressive illness was bullying and sexual harassment occurring in the workplace. He recommends referral to a Clinical Psychologist. Dr Murphy stated under cross-examination that he did not observe any signs of her disassociating during the interview.
Ms Gagliardi, Clinical Forensic Psychologist, provided a written report and gave detailed oral evidence at the hearing, and was subjected to lengthy cross-examination about the contents of her written report and the processes of assessement/testing used in arriving at her assessment and opinion.
Ms Gagliardi assessed Ms James during an interview on 22 December 2012. The report details that Ms James attended one 2 hour interview and was given two psychometric inventories as part of the assessment. Ms Gagliardi was given an unsigned statement by Ms James which had been prepared by her legal representatives. Ms Gagliardi states Ms James was concerned during the assessment interview that she would be late for work and so she gave Ms James a self-report inventory to complete at home and return the following day - usually the inventory is completed during the assessment appointment but because Ms James was anxious about a work commitment on the day of the assessment she was allowed to take the self report inventory away. The report details that Ms James failed to return the inventory at the time promised, "requiring prompting by the legal aid office staff as a result". In Ms Gagliardi's view this demonstrated Ms James' poor organisational skills as she had timetabled a work commitment to conflict with her assessment appointment with Ms Gagliardi, and Ms Gagliardin sees this as indicative of her psychological injury.
Ms Gagliardi details what Ms James reports that she experienced in the workplace including sexual comments and sexual remarks. She states Ms James said that Mr Tracz:
invaded personal space and rubbed himself against her as they walked to the kitchen area; made sexual comments, including comments about her bra, breast, underwear, and body; made sexual references, including invitations to him to touch her and fondle her; made sexual remarks about his own sexual endeavours, as well as sexual remarks about other staff; yelled at her, whilst invading her personal space and making threatening gestures towards her; told other staff to "watch out" for her and keep an eye on her, when he was away; phoned work whilst he was on leave and yelled abuse at her for any minor mistake made, including threatening her with comments such as "you better watch yourself". Ms James reported this abuse continued throughout her entire time at Wild Foods.."
Ms Gagliardi details Ms James' medical and psychiatric history and Ms Gagliardi gives the opinion, partly based on the self report inventory which Ms James completed at home, and partly based on Ms Gagliardi's observations and clinical judgement during the assessment interview, that Ms James disassociates and has impaired mood with depressive symptomatology, with symptoms of anxiety and trauma reaction. Ms Gagliardi notes in her report that she cannot ascertain the veracity of Ms James claims of abuse within the workplace but assuming the event took place the associated pathology has clinical verisimultude. Ms James presents with symptoms and signs associated with Complex Post-traumatic Stress Disorder.
Dr Bridge, General Practitioner, provided a report as to his impression that Ms James was suffering from reactive anxiety and depression and his advice to her of various options. He provided her with Work Cover certificates and his opinion that her employment, as reported to him by her, was a contributory factor. He referred her for counselling to Esme Nassar, Clinical Psychologist. He prescribed an antidepressant. Dr Bridge details next seeing Ms James on 7 November 2011 when she advised him she had alternative employment and was happy in this situation, but her symptoms due to her previous situation continued. She thought her counselling with Ms Nasser was helpful. Under cross examination Dr Bridge agreed that he had not asked Ms James about the specifics of what occurred in the workplace. He also agreed that his clinical notes of the various appointments were brief and that Ms James often presented for another medical issue and he would ask her how her counselling was going.
Ms Nasser, Clinical Psychologist, states in a report written to Dr Bridge, that Ms James was referred for treatment of her anxiety and depression following a lengthy period of sexual harassment whilst employed as an apprentice chef. At the time of writing the report (15 November 2011) Ms James had completed six sessions of therapy under her Mental Health Care Plan. She required some cognitive behaviour therapy and some hypnosis to rid herself of feelings of trauma and anxiety. Ms Nasser states:
despite frequently missing her appointments she has proven quite responsive to therapy when she attends. Lauren has lost interest in her work as a chef. She is now looking to enrol at university to study to become a health inspector. She is also in the process of applying for other jobs. Lauren still has room for further improvement. It would be appreciated if you could approve an additional four sessions of therapy...":
The Law
The Anti-Discrimination Act 1977 (the Act) provides:
22A Meaning of "sexual harassment"
For the purposes of this Part, a person sexually harasses another person if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
That sexual harassment in employment is unlawful in set out in section 22B of the Act
22B Harassment of employees, commission agents, contract workers, partners etc
(1) It is unlawful for an employer to sexually harass:
(a) an employee, or
(b) a person who is seeking employment with the employer.
(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
.......
(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.....
(
(9) In this section:
"place" includes a ship, aircraft or vehicle.
"workplace" means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.
"workplace participant" means any of the following:
(a) an employer or employee,
(b) a commission agent or contract worker,
(c) a partner in a partnership,
(d) a person who is self-employed,
(e) a volunteer or unpaid trainee.
(10) Without limiting the definition of
"workplace" , the workplace of a member of either House of Parliament is taken to include the following:
(a) the whole of Parliament House,
(b) any ministerial office or electoral office of the member,
(c) any other place that the member otherwise attends in connection with his or her Ministerial, parliamentary or electoral duties.
Has the applicant established that Mr Tracz sexually harassed her in the workplace?
Having regard to the legislative provisions set out above, if the tribunal finds that the applicant has established that Mr Tracz did the acts/conduct, as alleged by the applicant, there would be sexual harassment under the Act. The acts would be unwelcome conduct of a sexual nature, which a reasonable person would, in the circumstances, have anticipated would be offensive to the applicant.
The applicant has the onus of proof, to the required standard, being the balance of probabilities, to establish her case, on the evidence and according to law. The applicant must establish on the balance of probabilities that the first respondent, Mr Tracz, sexually harassed her in employment.
It is not in dispute that the alleged sexual harassment occurred in the course of Ms James' employment; nor is it in dispute that Mr Tracz was Ms James's supervisor in the workplace and in a position of power in relation to Ms James.
In the current matter there is a strong divergence in the evidence of the parties. The evidence of the applicant and her witness, Mr Streeter, is that there was sexual harassment in the workplace, of workers including Ms James, by Mr Tracz. The evidence of Mr Tracz, Ms Roach, Ms Young and Ms Wilford, is that this did not occur.
Counsel for the applicant conceded that there were some inconsistencies in the applicant's account but indicated that the applicant had consistently claimed that there were sexual comments and inappropriate touching in the workplace.
The tribunal observes and finds that, after her departure from the workplace, the applicant has consistently made the claim that there was sexual harassment: to the Anti-Discrimination Board, to her general practitioner, Dr Bridge, to Dr Murphy, Ms Gagliardi and Ms Nasser. There are some differences in her account as to what occurred. For example, a significant matter which was stated in her initial application to the Anti-Discrimination Board, was not included in her affidavit or oral evidence (being propositioned at work to have sex in the cool room). In relation to one difference - namely that in her oral evidence at the hearing she had stated that Mr Tracz pulled out the top of Amy and looked down her top, but in her affidavit evidence she stated that he put his hands down her top - Ms James stated that she embellished her evidence in her written affidavit "to a certain extent" in relation to that incident.
A further inconsistency is indicated in the conflict between the evidence of Dr Murphy - that Ms James stated that she intended to work as a chef and was looking for chef jobs, - and the evidence of Ms James that after leaving Wild Foods she was no longer willing or able to work as a chef. She has stated that Dr Murphy must be wrong in that part of his report, however she does not indicate any other part of the report is wrong. Dr Murphy gave evidence that he dictates the report straight after the interview with the patient, and makes notes during his interview. Whilst it is possible that Dr Murphy was mistaken about what Ms James had said to him, the tribunal considers that given there was no objection to other parts of his report, and given the contemporaneous nature of Dr Murphy's report, it is probable that what Dr Murphy recorded is what Ms James stated in that interview.
Other inconsistencies in the evidence presented by the applicant included that the evidence of the applicant and her witness, Mr Streeter, were not consistent with each other. Mr Streeter's evidence differed from the evidence of Ms James as to what occurred, in particular Mr Streeter stated that he observed Mr Tracz touching Ms James' breasts for a prolonged period of a few seconds and Ms James does not give evidence of this occurring. However in her affidavit of 9 May 2013 in response to Mr Tracz's affidavit and his denial in that affidavit of the evidence of Mr Streeter that Mt Tracz's "groped" Ms James, Ms James states "he did grope me". However, at no prior time had Ms James described Mr Tracz as touching her breasts for a lengthy period of several seconds.
Mr Streeter also appeared to have a motive for giving evidence adverse to Mr Tracz in that he agreed that he left the workplace on bad terms and was angry with Mr Tracz, and this motive causes the tribunal some concern for the reliability of the evidence of Mr Streeter, especially given the conflict of his evidence with that of Ms James
The evidence of Ms James was also contradicted by other witnesses. In particular Ms Young contradicted Ms James' account of her having told Ms Young about the harassment. Ms Young contradicted Ms James as to her complaints about Mr Tracz's behaviour and also stated that she never observed sexual harassment in the workplace. Ms Young contradicted Ms Jones in relation to the gift to the café manager on her return from Bali - Ms James stated that this was given outside of the workplace yet Ms Young was clear in her evidence that it was given in the workplace and she had a basis for her recollection, being that she was given a gift at the same time. Ms James states that Ms Young said to her that "One day if Robert keeps doing the things he does he will get into trouble because he used to get into trouble where he last worked". Ms Young denied saying this and also stated that Mr Tracz did not get into trouble at his last workplace.
Mr Tracz consistently denied that sexual harassment occurred and denied the specific allegations when put to him. His evidence to this effect was not impugned under cross examination nor was his credibility overall impugned. Ms Roach, Ms Young and Ms Wilford, also denied it occurred. Ms Wilford gave evidence of getting on well with the Ms James in the kitchen, and she denied ever observing any sexually inappropriate behaviour by Mr Tracz towards Ms James. The evidence of Ms Wilford might be lacking in independence given that she is still employed in a business operated by Mr Roach. However the tribunal did find her evidence to be responsive to questions asked in cross examination and her credit and reliability was not impugned. The tribunal has no proper basis to disregard her evidence on the basis of inconsistency or lack of plausibility, although the tribunal does bear in mind the potential for the evidence to lack independence through her continuing employment situation.
Given the strong conflict in the evidence of the applicant and the respondents, the tribunal must carefully assess and weigh the evidence in making findings as to whether the applicant has established, on the evidence, to the requisite standard of proof, that the sexual harassment occurred.
In assessing the evidence, the tribunal must have regard to the reliability of the evidence having regard to its overall consistency, or its consistency with other available information. The tribunal also considers the plausibility of each party's account.
In assessing the applicant's evidence the tribunal has given significant weight to the fact that the applicant has consistently said, since the time of her departure from the work place, that the sexual harassment occurred - this, in the tribunal's view, lends some support to a conclusion that the applicant is giving a true account. However, the tribunal must assess and weigh all the evidence in the proceedings.
The tribunal observes that the plausibility of the applicant's account is furthered by the medical evidence - this is because the medical evidence (detailed above) indicates that the applicant has experienced and/or is experiencing mental health symptomatology which would be consistent with her account of experiencing sexual harassment in the workplace. However, such evidence is not conclusive that the sexual harassment as alleged by the applicant occurred, as the authors of the report only indicate that the symptoms are consistent with the applicant's self report of experiencing sexual harassment. The applicant's report to some of the medical professionals also included complaints of verbal bullying and being watched in the workplace.
The tribunal observes that the diagnosis of symptomatology by those medical professionals is not consistent - Dr Murphy believed the applicant would make a full recovery in a short period of time and records the applicant told him that she was functioning well at TAFE and that she wanted to continue to be a chef, whereas Ms Gagliardi indicates Ms James is unable to undertake that work. Ms Nasser describes Ms James as losing interest in her work as a chef, and responding well to therapy when she attended appointments. The tribunal observes that the evidence before the tribunal includes evidence of other possible stressors such as -that the applicant states she worked long hours, the kitchen was busy/stressful, she appeared to feel let down by her employers in relation to her wages and apprenticeship situation/support of her TAFE studies, her report to Ms Gagliardi indicated that she felt watched and criticized, and she reported verbal abuse and bullying, all of these factors, if they occurred, are potential stressors.
The evidence of Ms Young was clear and consistent and the tribunal found her evidence to be convincing. She is a mature woman who has extensive experience in the hospitality industry - her evidence about her experience including supervision of staff was not challenged in the proceedings. In the tribunal's view she gave her evidence in a responsive fashion, it appeared natural, and the tribunal had no reason to discount her evidence, it was not shown to lack credibility, to be unreliable or inconsistent. It might be suggested that her evidence lacked independence because of her period of association with Mr Tracz (having worked also with him in prior employment). However, such lack of objectivity was not established in the proceedings, and as further detailed below Ms Young also gave some evidence which was arguably detrimental to Mr Tracz and beneficial to Ms James, in the tribunal's view this indicates some impartiality or independence in her testimony.
It is clear that Ms Young no longer works with Mr Tracz and has not done so since 2011, when she left of her own accord to take a job where less work hours were involved. She gave evidence that might be said to support the applicant in that she stated she recalled the applicant saying that Mr Tracz was a bully (Ms James was crying and upset, it was near the time of her departure). Ms Young also gave evidence that she "heard words" at times between Mr Tracz and Ms James, again evidence which indicated some independence from Mr Tracz. She was firm in her evidence that at no time had Ms James complained about sexual harassment to her, not during the time they worked together, nor during the time of her departure. Ms Young was also clear that she observed no such harassment. She was not shaken from this position during cross examination. She was responsive to questions during the proceedings and her evidence appeared to the tribunal to be consistent and reliable.
The tribunal is required to consider, if the evidence of two of the witnesses, Ms Young and Ms Wilford, is accepted, that Ms James stated her intention to take action against the employer : Ms Young stated that the applicant expressed that her Dad "would see this through" (in relation to apprenticeship and workplace issues); Ms Wilford went further and said Ms James stated: "If I tell Dad the right things Rob has done or said he will take it further..... I will take them for everything I can get..." (paragraph 10 of Ms Wilford's statement). Ms James denied these statements and says these witnesses previously said they would support her. She indicates Ms Wilford previously told her that all staff at Wild Foods had been told to keep their mouths shut. However, this would not apply to Ms Young who has not been on staff for some time (departing in June 2011, soon after Ms James departure). If the tribunal accepts the evidence of Ms Wilford, which is in part consistent with that of Ms Young, it would appear to indicate an expressed intention on the part of the applicant to hit back at her employer.
The tribunal must make findings in relation to the various accounts, in determining this matter.
As noted above the tribunal gives weight to the applicant having said from the time of her departure from the workplace that the sexual harassment occurred; the tribunal gives weight to the applicant consistently reporting this to professionals; the tribunal gives weight to the medical/professional evidence as to her symptomatology.
The applicant's evidence was inconsistent as detailed above. The evidence of Ms Young was impressive, was consistent with other available evidence and contradicted the evidence of Ms James, not just as to whether the sexual harassment occurred but as to conversations which Ms James said she had with Ms Young. Ms Young has no motive for giving false evidence - she has left the workplace and does not need to give evidence in support of the respondents for any economic or employment associated reason. Whilst Ms Young had worked with Mr Tracz in previous employment, this was for a relatively short period of June 2006 to September 2007. Her length of time working with Mr Tracz in the context of a career of over 35 years, does not indicate she would not be independent from Mr Tracz in giving her evidence. As detailed above the tribunal found Ms Young to be a convincing witness. Ms Young's evidence was also consistent with other evidence, for example, the evidence given by Ms Young as to statements made by Ms James that "dad said he wasn't going to let this slide and he would see it through" was consistent with the evidence of Ms Wilford about similar words said by Ms James to Ms Wilford. These witnesses indicate the words were said in the context of a disagreement about wages/apprenticehip/employment dispute, and were not said in the context of any report/allegation of sexual harassment.
The difficulty for the tribunal in accepting Ms James' account is that her account was not consistent with other evidence, such as the evidence of her own witness, Mr Streeter, and conflicted with evidence of other witnesses, such as Ms Young. Yet Ms Young's evidence was consistent with other witnesses such as Ms Wilford. Ms James evidence was also not consistent as she described events differently at different times, and in particular described what Mr Tracz did to Amy differently in the hearing, to what she stated in her affidavits, and she said that what she put in her affidavit about this incident was embellished. It is of concern that she gave this account, which she now says was embellished, in two affidavits which were sworn at different times (paragraph 25 of affidavit signed on 12 March 2012, and paragraph 23 of affidavit signed on 9 May 2013)
The evidence of Mr Tracz was consistent and was not impugned under cross examination and he disputes the evidence of Ms James. Ms Roach also states sexual harassment did not occur. Of course it is in the interests of Mr Tracz and Ms Roach to dispute Ms James' account.
The evidence of Ms Wilford was clear and she was responsive to questions during the proceedings, and did not appear as a witness who was not telling the truth. The tribunal is cautious about uncritical acceptance of her evidence as she is a continuing employee of the husband of the second respondent. Ms Wilford also contradicted Ms James' account of what occurred in the workplace. Of more concern was Ms Wilford's evidence that Ms James, because of being angry about workplace issues, expressed an intention to "take them for everything I can get". Such a statement, may indicate a motivation for an embellished account of what occurred in the workplace.
The difficulty for the applicant in this matter, who has the onus of proof, is that the tribunal has no real basis to prefer the evidence of the applicant over the evidence of the first and second respondent, and the second respondents' witnesses. The evidence of those witnesses contradicts the evidence of the applicant. If the tribunal has no basis to reject the evidence of those witnesses, then the tribunal must have a basis to prefer the applicant's evidence, over the evidence of those witnesses who contradict her account. As detailed above the tribunal had no real basis to reject the evidence given by the contradicting witnesses for lack of plausibility or credibility, and this is particularly so in relation to Ms Young. There were some inconsistencies in the applicant's account, as detailed above, and the tribunal is concerned that an embellishment was made, about one alleged incident in one affidavit, and the embellishment was repeated in another affidavit over 12 months later. For all the reasons detailed the tribunal finds no basis to prefer the applicant's evidence over the contradicting evidence. Accordingly the tribunal finds that the applicant has not established on the evidence before the tribunal, on the balance of probabilities, that the sexual harassment occurred as she alleged. The tribunal finds that the applicant has not established her claim.
Given the tribunal's finding that Ms James has not established, on the balance of probabilities, that Mr Tracz sexually harassed her in the workplace, the tribunal does not need to go on and determine whether Ms Roach permitted sexual harassment.
The tribunal does not need to determine issues of damages and loss, including psychological damage, or to evaluate the medical evidence further, because the applicant has not established the claim of sexual harassment.
For all the above reasons the tribunal is not satisfied that the applicant has established on the evidence, on the balance of probabilities, that the first respondent sexually harassed her in her employment, and accordingly the tribunal dismisses the application against the first respondent and the second respondent.
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Decision last updated: 18 July 2013
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