Kassa and Bitmead and Anor
[2006] WASAT 375
•21 DECEMBER 2006
KASSA and BITMEAD & ANOR [2006] WASAT 375
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 375 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:14/2006 | 16, 17, 18, 19, 20 OCTOBER 2006 22, 23 NOVEMBER 2006 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) MR M SPILLANE (MEMBER) PROF C MULVEY (SESSIONAL MEMBER) | 20/12/06 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | RIBKA KASSA LINDSAY BITMEAD INGHAMS ENTERPRISES PTY LIMITED |
Catchwords: | Sexual harassment – Employment – Applicant claimed sexual harassment by manager comprising unwelcome comments, invitations, telephone calls and SMS messages – First respondent admitted conduct but claimed relationship was consensual – Applicant found not credible on matters central to her claims and on other matters – Tribunal not satisfied any conduct was unwelcome – Application dismissed – No conduct for which second respondent liable – Application concerning second respondent dismissed |
Legislation: | Equal Opportunity Act 1984 (WA), s 24, s 24(1), s 24(3), s 93(1), s 161 |
Case References: | Winter and Commissioner of Western Australian Police Service [2006] WASAT 87 Nil |
Orders | 1. The application against the first respondent is dismissed.,2. The application against the second respndent is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : KASSA and BITMEAD & ANOR [2006] WASAT 375 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- MR M SPILLANE (MEMBER)
PROF C MULVEY (SESSIONAL MEMBER)
- 22, 23 NOVEMBER 2006
- Applicant
AND
LINDSAY BITMEAD
First Respondent
INGHAMS ENTERPRISES PTY LIMITED
Second Respondent
Catchwords:
Sexual harassment – Employment – Applicant claimed sexual harassment by manager comprising unwelcome comments, invitations, telephone calls and SMS messages – First respondent admitted conduct but claimed relationship was consensual – Applicant found not credible on matters central to her claims and on other matters – Tribunal not satisfied any conduct was unwelcome –
(Page 2)
Application dismissed – No conduct for which second respondent liable – Application concerning second respondent dismissed
Legislation:
Equal Opportunity Act 1984 (WA), s 24, s 24(1), s 24(3), s 93(1), s 161
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Ms M Cox
First Respondent : Ms M Cuomo
Second Respondent : Ms G Archer
Solicitors:
Applicant : Women's Law Centre of WA
First Respondent : S Nigam & Co
Second Respondent : Downings Legal
Case(s) referred to in decision(s):
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicant claimed that the first respondent sexually harassed her at work and that the second respondent, their employer, was liable for his conduct. The harassment was alleged to comprise, in particular, repeated unwelcome personal remarks, invitations to meet outside work, showing her a photo of male genitalia, and telephone calls and SMS messages.
2 The first respondent did not deny that a friendship developed between him and the applicant that went beyond a working relationship, but said it was initiated by her and was consensual. He did not deny sending her SMS messages; he did not deny making telephone calls to her but said she did the same to him. Further, he said, he and the applicant had met twice outside work at her invitation, including once at her home.
3 The applicant maintained that she responded to the unwelcome conduct only because the first respondent was her boss and she believed her employment would be jeopardised if she rejected his advances. She denied initiating contact with him and, in particular, denied making phone calls to him, and meeting him outside work.
4 The Tribunal heard evidence from the applicant and respondent and a number of witnesses for each. Much of the applicant's evidence sought to establish that the culture of the second respondent's workplace was one of sexual innuendo where sexual relations between managers and staff were common. Much of the respondents' evidence sought to establish that the applicant was a troublesome and argumentative employee.
5 The Tribunal was not satisfied that the applicant was a credible witness and rejected much of her evidence. It did not accept her claim that the first respondent conduct was unwelcome. It found she had made numerous telephone calls to him and met him on two occasions outside work, including at her home, and that she had either initiated contact or willingly reciprocated his advances.
6 The Tribunal's finding that the applicant had not been truthful about matters which were central to her claim of sexual harassment was lent further weight by its finding that she had not been truthful about other matters the subject of evidence before the Tribunal.
(Page 4)
7 The Tribunal found the first respondent's conduct in the relevant period did not constitute sexual harassment within the meaning of the Equal Opportunity Act 1984 (WA).
8 As the Tribunal was not satisfied that the first respondent's conduct constituted sexual harassment it was not necessary to deal with whether or not the second respondent was liable for his conduct.
Background
9 The applicant, Ribka Kassa, claims the first respondent, Lindsay Bitmead, harassed her sexually at their place of work contrary to s 24 of the Equal Opportunity Act 1984 (the Act). She claims the second respondent, Inghams Enterprises Pty Limited, who, at the relevant times employed her and Mr Bitmead, is liable, by virtue of s 161 of the Act, for his unlawful conduct.
10 On 25 July 2005, Ms Kassa lodged with the Commissioner for Equal Opportunity (the Commissioner) a complaint of sexual harassment by Mr Bitmead and of sex discrimination and sexual harassment in the area of employment by the second respondent. Although the complaint referred to matters going back to 1999 when Ms Kassa started work at Inghams, the complaint itself was of alleged contraventions of the Act in the 12-month period from July 2004 to July 2005, immediately preceding the complaint.
11 By letter dated 23 January 2006, the Commissioner, having investigated the complaint and attempted without success to conciliate it, referred it to the Tribunal pursuant to s 93(1) of the Act.
12 An oral hearing was held on 16, 17, 18, 19 and 20 October and 22 and 23 November 2006.
Preliminary matters
(i) Application to strike out
13 Prior to the hearing, the respondents foreshadowed an application to have parts of the applicant's statement of issues, facts and contentions filed with the Tribunal on 22 March 2006, struck out for irrelevance. With the agreement of counsel for Ms Kassa, who did not himself prepare the statement, paragraph 17 and parts of paragraph 18 of the statement were struck out. A further statement of issues, facts and contentions filed by the applicant on 22 June 2006, which alleged victimisation by the respondents, was also struck out by agreement.
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14 Counsel for the applicant and the respondents also objected on various grounds, including that they were offensive or irrelevant, to parts of each others' witness statements tendered in evidence. We have noted the objections; we have not made formal orders in respect of those parts of the submissions but give them the weight we consider they are due.
(ii) Offer of settlement
15 An amount which Ms Kassa was apparently offered by the respondents in settlement of her claim was disclosed in some documents before the Tribunal. A report dated 24 September 2006 from Dr Rebecca Adams is one such document. The details and circumstances of the offer are not made clear, but the information is clearly potentially prejudicial to both parties but more so to the respondents. It was agreed that those references would be struck from the record and that the Tribunal would proceed on the basis they are not before it.
(iii) Interpreter
16 Ms Kassa was born in Ethiopia and came to Australia in 1999. At her request, the Tribunal arranged for an Amharic interpreter to be present throughout her evidence.
17 The respondents took issue at the start of the hearing with Ms Kassa's claimed need for an interpreter. They maintained that she had sufficient comprehension and fluency in English to undergo cross-examination in English without undue prejudice, and that allowing her to give her evidence through an interpreter would advantage her by allowing her additional time in which to consider her responses under crossexamination.
18 Documents filed with the Tribunal which had been prepared without the assistance of an interpreter, including reports detailing Ms Kassa's accounts to doctors given over many hours, indicated to us that Ms Kassa's comprehension and fluency in English appeared quite adequate for the purposes of giving evidence. Her written statements and her oral and written claims were consistent over time, whether prepared for the union, the Commissioner, her solicitor, counsel, or her doctors.
19 We heard from Ms Kassa that she learned English at school in Ethiopia and passed English at school. We noted that she had sufficient confidence in her English to apply for a position as a trainer at Inghams. We heard from Mr Mossenton, the representative for the Australian Meat Workers Union (AMWU) who advocated on Ms Kassa's behalf in her
(Page 6)
- complaint against Mr Bitmead, and Dr EdwardsSmith, an expert who examined Ms Kassa at the respondents' request. Both reported no difficulty with Ms Kassa's ability to express herself, although Mr Mossenton reported that he had some trouble at times understanding her.
20 Taking all of this into account, we directed Ms Kassa she was to proceed without recourse to the interpreter in the first instance; if she could not understand a question, she should ask the questioner to reframe it; if she still could not understand, she should seek the assistance of the interpreter. We are satisfied that our instructions to Ms Kassa were quite clear and that she understood them.
21 Ms Kassa repeated her need for an interpreter at points throughout the hearing. However, we are satisfied that she was able to understand what was being asked of her and to give her evidence without prejudice. In particular, her initial hesitance quite quickly gave way and she responded, for the most part, fluently and without apparent difficulty; she asked for, and had, the assistance of the interpreter, who sat beside her, as she required.
22 Although her English was not perfect, Ms Kassa did not, in our view, struggle with comprehension or expressing herself. We reject any suggestion that she was required to give her evidence without the assistance of an interpreter. We are satisfied that her English was adequate and assistance offered such that she had a real opportunity to hear the case against her and state her case.
(iv) No case to answer
23 The Tribunal heard first from Ms Kassa and her witnesses, but could not hear from her last witness, Dr Adams, until the second last day of hearing, after the respondents had called most of their witnesses. This arrangement was with the consent of the parties.
24 Counsel for the second respondent indicated to the Tribunal that, had it not been that Dr Adams was still to be heard, she would have submitted at the conclusion of Ms Kassa's case that there was no case to answer. At the conclusion of Dr Adams' evidence, and again after all the evidence was concluded, counsel again referred to, but did not press, the no case submission. She conceded there was little practical value in the Tribunal making a decision on the matter.
(Page 7)
25 Because we have, in fact, heard all of the evidence, we have decided against making a decision as to whether there is any case to answer. However, as will become clear, it makes little practical difference to the outcome.
Ms Kassa's complaint
26 Ms Kassa and her then husband, Desta Gebremariam, came to Australia from the Sudan in 1999. They separated shortly after arriving in Australia. There are two children of the marriage. Mr Gebremariam is also employed by Inghams.
27 Ms Kassa started work as a food process worker at Inghams processing plant in Thornlie in August 1999. Mr Bitmead was a Senior Production Supervisor at the same plant. In June 2002, when the Thornlie plant closed, they moved to Inghams processing plant in Osborne Park where Mr Bitmead was promoted to Plant Manager. Ms Kassa continued to be employed as a chicken boner working in various parts of the plant. In mid-2003, she took maternity leave, returning to work in May 2004.
28 Ms Kassa claims that Mr Bitmead sexually harassed her over a period from shortly after she started work at Inghams and she has recounted incidents of alleged harassment dating back to 1999. However, the complaint before the Tribunal is of sexual harassment between July 2004 and July 2005, being the statutory 12-month period for making a complaint to the Commissioner. Evidence of alleged sexual harassment before July 2004 may be relevant to the matters before us but it cannot, of itself, ground a finding of unlawful discrimination (see Winter and Commissioner of Western Australian Police Service [2006] WASAT 87).
29 Prior to her return from maternity leave in May 2004, Ms Kassa says, Mr Bitmead would comment on her looks and ask her to go out with him or meet him outside work; she felt she had to be polite because he was her boss but, when she did not return his advances, he treated her less favourably than others, calling her to his office and warning her about her work or her conduct towards supervisors, and assigning her to a part of the factory unpopular with workers. As already noted, none of this, if established, can itself ground a finding of unlawful conduct.
30 Ms Kassa says that the incidents of sexual harassment by Mr Bitmead intensified after her return from maternity leave; he continued to comment on her looks and made suggestive comments,
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- calling her to his office and being "sleazy and sexual" towards her; she felt uncomfortable but did not want to upset him and jeopardise her employment. She says she was afraid to bring his conduct to the attention of his managers because he was friends with them all and he was powerful and influential in the workplace and she feared, if she complained, that she would be treated even more unfavourably.
31 Ms Kassa complains in particular that, in the relevant period, Mr Bitmead:
(i) made repeated calls to her mobile phone;
(ii) sent her suggestive SMS messages;
(iii) asked if he could meet with her outside work and visit her at home;
(iv) showed her a photo of male genitalia on his mobile phone; and
(v) commented to her to the effect that it was alright to sleep with him because he had had a vasectomy and she could not get pregnant.
32 Ms Kassa maintains that Mr Bitmead's attention and his conduct was unwelcome and she denies ever reciprocating his advances in any way. She says she told him repeatedly that she was not interested in him and would not go out with him; she refused all invitations to meet him outside work; she never invited, and refused to allow, him to come to her house. She says she felt upset and humiliated at incidents such as when he showed her the photo of male genitalia.
33 Ms Kassa says the final straw came in June 2005 when she applied for a promotion to a trainer's position. She says Mr Bitmead called her to his office and told her to the effect that, although her work record was not good, "if you give me small, I give you big … you scratch my back and I'll scratch yours". Ms Kassa says that, after this, she finally found the courage to complain to her union who, in turn, took her complaint to Mr Peter Manning, Ingham's managing director at the time and, from there, to the Commissioner for Equal Opportunity
34 Mr Bitmead does not deny that a relationship developed between him and Ms Kassa around the end of 2004 but says it was consensual. He maintains that she pursued him throughout, flirting with him, inviting
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- him for coffee and asking him to her house. He says that, from around December 2004 to early June 2005, he responded out of weakness and because he was flattered by her attentions.
35 Mr Bitmead denies that his calls and SMS messages to Ms Kassa were unwanted, and maintains that she reciprocated, calling him frequently throughout this period. He says he met her twice outside work, once in January 2005 when they met for coffee in Kings Park, and again in June 2005 when he visited her at her home on a Saturday evening.
Relevant legislation
36 Section 24 (1) of the Act makes it unlawful for a person to harass sexually an employee of that or any other person.
37 By s 24(3), a person is taken, for the purposes of the Act, to harass sexually another person if:
"the first-mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and —
(a) the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person's employment or work or possible employment or possible work; or
(b) as a result of the other person's rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's employment or work or possible employment or possible work.
(4) A reference in subsection (3) to conduct of a sexual nature in relation to a person includes a reference to the making, to or in the presence of, a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing."
38 Section 161 makes an employer vicariously liable as follows:
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- "(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent —
(a) an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
(b) an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph."
Evidence and submissions
39 We heard oral evidence from Ms Kassa and Mr Bitmead and from a number of witnesses, most of whom work, or worked, at Inghams. Much of the evidence sought to establish matters that do not go directly to the Tribunal's current inquiry.
40 Much of the evidence led by the respondents sought to establish that Ms Kassa was a troublesome and difficult employee who argued with managers and other staff and complained about her conditions of employment. It sought also to establish that Ms Kassa was aggressive in making statements to do with her race, saying things to the effect that she was discriminated against because of her colour, that she would be "like Mandela" and that Inghams would never sack her because she was black.
41 In turn, Ms Kassa led evidence that sought to establish that the culture at Inghams was one of sexual innuendo, of sexual relationships and exploitation by managers of the mostly immigrant employees, and that Mr Bitmead was a bully and a well-known sexual harasser, that she was treated less favourably than others and was, in effect, picked on.
(Page 11)
42 Except where directly relevant to the present inquiry, we have not recounted that evidence here.
Phone calls and SMS messages
43 Ms Kassa claims that, in the early months of 2005, Mr Bitmead sent her "unwelcome and sexually harassing" SMS messages, the text of which she kept; She claims she did not know what to do about them and she ignored them. She says he also made repeated calls to her mobile phone during her break times and after work; she took the calls and talked to him only because he was her boss; on each occasion she tried to be polite but firm, and not rude, but she let him know, many times, that she was not interested in him.
44 The dates, times and text of the messages received by Ms Kassa from Mr Bitmead in early 2005 follow.
Date and time Text
___________________________________________________________
19 January 16.38pm Do you miss me, Imsr you – Lindsay
28 January 15.05pm I want to see you now – Lindsay
29 January 9.17am Meet me at Glendalough station in 25 minutes is that okt – Lindsay
3 February 15.23pm U look lovely today Lindsay
3 February 16.34pm I am still thinking about U – Lindsay
28 March 8.13am Can I see U this morning
28 March 9.40am Can I C U 4 a while at the park near the hospital – Lindsay
30 March 11.56am Meet me near my car in 5 mins – Lindsay
30 March 12.06pm I am waiting – Lindsay
27 May 15.13pm I want U badly – Lindsay
27 May 15.28pm I am waiting 4 U – Lindsay
45 Mr Bitmead does not deny making calls to Ms Kassa or sending text messages. He claims, however, that they were not unwelcome, that she willingly received his SMS messages and responded when he called. Moreover, he says, she also called him; it was her habit, because she was low on credit on her phone, to leave brief voice messages or speak to him briefly and ask him to call her back. He claims that the first of his messages on 27 May was in response to a voice message from Ms Kassa saying "I haven't seen your smiling face for two days, are you still
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- interested in me" and that, after sending the SMS message "I want U badly", she sent him one saying "Are you free now" to which he sent his second SMS message. He did not keep any record of her message.
46 On 9 October 2006, on the respondents' application, the Tribunal ordered the Vodafone and Optus records for Ms Kassa's mobile phone for the period 1 January 2004 to 31 December 2005 be produced to the Tribunal. No evidence has been called, or submissions made, in respect of the Vodafone records and we draw no conclusions from them.
47 We also have before us Mr Bitmead's Telstra mobile phone records for the period 31 January 2005 to 30 June 2005 (between 1 April and 3 June inclusive, when Mr Bitmead was on leave, no calls are recorded).
48 The Optus records for Ms Kassa's phone are for the period from 26 February 2004 to 31 December 2005. Calls are shown on most days but there is a period from 18 February 2005 to 21 June 2005 inclusive where, apparently, she made no calls at all. This includes 27 May 2005 when Mr Bitmead Claims she called him and sent him an SMS message. The absence of calls for four months is unexplained. It may be that Ms Kassa had another mobile phone in that period but, if so, we have no records for it.
49 The Optus records show nine calls from Ms Kassa's mobile phone number to Mr Bitmead's mobile phone number between 28 January and 12 February:
Date and Time Duration
_______________________________________
Sat 22 Jan 8.16pm 12 seconds
Mon 24 Jan 11.54am 25 seconds
Fri 28 Jan 1.56pm 16 seconds
Fri 28 Jan 2.06pm 12 seconds
Sat 29 Jan 9.29am 33 seconds
Tues 1 Feb 3.06pm 37 seconds
Thur 3 Feb 3.34pm 6 seconds
Fri 4 Feb 3.37pm 14 seconds
Sat 12 Feb 4.46pm 3 seconds
50 Ms Kassa denies making any of these calls and has offered several possible explanations for how they might have been made from her
(Page 13)
- phone. She told us she and others would exchange mobile phones if they were low on credit, and two of them worked at Inghams and knew Mr Bitmead. When pressed, Ms Kassa identified one person as Talia and the other as Hassan. Under cross-examination she said Talia had been to her house but they had never met anywhere else outside work, and Hassan only ever used her phone at work.
51 Mr Fatah Hassan, who worked with Ms Kassa at Inghams, gave oral evidence. He agreed he borrowed her phone but only ever at work. He gave evidence that she had borrowed his phone a "couple of times .… to call a lot of people; not only Lindsay". When pressed, he said Ms Kassa did not specifically tell him she was calling Mr Bitmead and he could not recall her saying "I'll call Lindsay", but she did ask if she could use his phone. His phone bill showed Mr Bitmead's number although Mr Hassan "wouldn't say [he] called Lindsay – it was only showing his number".
52 Ms Kassa suggested other possible explanations for the calls including sabotage: she had left the phone in her locker; her ex-husband, who has the keys to her house, could be implicated; or the number could have been pressed accidentally while in her pocket or while her young son was playing with her phone. This last explanation seems improbable as Ms Kassa told us she has a flip-top phone.
53 Ms Kassa was asked repeatedly at the hearing whether she ever made calls to Mr Bitmead. Her counsel contends that her responses were equivocal and invites us to find that she did not, in fact, deny calling Mr Bitmead. We do not accept that.
54 Asked under cross-examination whether she ever called Mr Bitmead, Ms Kassa said "As far as I know. I can't remember" and, in response to questions from the Tribunal, "I will explain for you, but I didn't call –" and "The thing is, as far as I know, I didn't use, and I didn't call him. That's all I say. Thank you".
55 When asked in re-examination whether it was possible that she could simply have forgotten calling Mr Bitmead, Ms Kassa said it was. However, this concession, made as it was in re-examination, does not alter our view that, taking her responses as a whole, her evidence was clearly that she did not call Mr Bitmead.
56 A significant series of calls and SMS messages between Ms Kassa's and Mr Bitmead's mobile phones between 28 January and 12 February 2005 is shown in the records as follows:
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Date and time Duration
_________________________________
Fri 28 Jan 1.57pm 2:13 mins
Sat 12 Feb 4.36pm 8.54 mins
Sat 12 Feb 6.15pm 10.06 mins
Mon 14 Feb 6.46pm 4:41 mins
Tue 22 Feb 5.03pm 8:05 mins
Tue 8 Mar 4.27pm 14:45 mins
Wed 9 Mar 5.51pm 0:04 mins
Fri 11 Mar 12.00pm 8:10 mins
Wed 30 Mar 12.09pm 0:30 mins
Wed 30 Mar 12.44pm 4:00 mins
Sat 4 June 10.57am 5:03 mins
Sat 4 June 5.59pm 2:07 mins
58 The phone records are compelling evidence, and the series of calls and SMS messages particularly compelling because:
(i) the nine calls from her phone to his between 22 January and 12 February 2005 last between 3 and 37 seconds and are consistent with his evidence that she would call him briefly and he would call her back;
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- (ii) the series of calls and SMS messages on 28 January, 3 February and 12 February 2005 cannot plausibly be understood other than as a series of calls or messages and responses;
(iii) the explanations offered by Ms Kassa for the calls from her phone to Mr Bitmead's cannot plausibly explain this number of calls and, in particular, the exchanges of calls and SMS messages in close succession;
(iv) on three occasions, calls are made from Ms Kassa's phone on a Saturday when she did not work; Mr Hassan's uncontradicted evidence was that he only used her phone at work; Ms Kassa's evidence was that the only place Talia saw her outside work was at her house;
(v) the SMS message at 9.17am on 29 January 2005 accords with Mr Bitmead's evidence about arranging to meet that day, and the call from her phone at 9.29am with his evidence that she called when she could not find him at the train station (see below);
(vi) the calls from Mr Bitmead's phone to Ms Kassa's on 4 June 2005 are consistent with his evidence that he called her at those times about meeting with her that evening (see below);
(vii) the calls and SMS messages are all within the period December 2004 to June 2005 when Mr Bitmead admits to the relationship; despite Ms Kassa's claim that he harassed her over a long period, no evidence has been produced of calls or SMS messages before then.
59 We also have Mr Hassan's evidence that Ms Kassa called Mr Bitmead on his phone (although he could not recall her saying so herself).
60 We do not accept Ms Kassa's evidence that she did not make the calls to Mr Bitmead shown on her phone records. The most plausible explanation is that she called him and we find, on the evidence before us, that she did so.
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Meeting in Kings Park - 29 January 2005
61 According to Mr Bitmead, some time around the end of January 2005, Ms Kassa came to his office and again asked him to her house for coffee. He told her he "would see". On the morning of Saturday 29 January, they spoke by telephone about meeting. Mr Bitmead could not recall whether he rang Ms Kassa or she rang him, but nothing turns on this.
62 Mr Bitmead says that, when they spoke on the morning of Saturday 29 January, he suggested meeting in King's Park for coffee. Ms Kassa did not know how to get there but said she knew the Glendalough train station. He says he then sent her an SMS message saying he would pick her up from the station if she could get there that morning. He then drove to the station where he met Ms Kassa who had parked her car there.
63 Mr Bitmead described to the Tribunal how the Glendalough station has a north and south car park, split by Scarborough Beach Road; while there, Ms Kassa phoned him to ask where he was; he was on the south side and she had parked in the northern car park; they found each other and he drove her to King's Park for coffee. Over coffee, which lasted about an hour, Ms Kassa talked about her separation from her husband, problems she had been having with him, and that she wanted to buy a house. She also talked about a friend at work who wanted to be transferred. Afterwards, he drove her back to her car and then went home.
64 Ms Kassa denies emphatically that this meeting occurred. However, the record of calls on Saturday 29 January is consistent with Mr Bitmead's claim that they met and went to King's Park on that date for coffee. His SMS message about meeting at Glendalough train station is consistent with this, and the call from Ms Kassa's phone at 9.29am is consistent with his claim that she rang him when they parked in different parts of the station car park. No other plausible explanation is before us.
65 Mr Bitmead has described the meeting, and what they discussed, in detail. The phone calls and SMS messages are consistent with his account. Whatever might be thought of his conduct in arranging to meet Ms Kassa outside work, Mr Bitmead impressed us as a frank and plausible witness. We accept his account of this meeting and reject her claim that it did not happen.
(Page 17)
Visit to Ms Kassa's house – 4 June 2005
66 Mr Bitmead says that, on Friday 3 June 2005, Ms Kassa again asked him to visit her at home and to ring her on Saturday morning if he could make it. On the morning of Saturday 4 June 2005 he phoned her and said he would come to her house that evening; she asked him to ring her at about 6pm to confirm he was coming and so she could give him the address. He says he rang her about that time and she gave him the address and asked him not to park in her driveway but to park in the street.
67 Mr Bitmead says he arrived at Ms Kassa's house around 6.45pm. In his written statement and in oral evidence, he described what Ms Kassa was wearing, and the layout and furnishing of the entrance, lounge and dining rooms of her house, and produced a "mud map" of the house. Although there were some details he could not recall, he described details such as what was on a tray on a coffee table in the lounge room, pictures on the wall, and that Ms Kassa smoked a hookah.
68 Mr Bitmead says Ms Kassa talked about her marital problems and difficulties with her children and told him she was applying for a position as relief training officer on the boning line, a promotion that had recently become available, and that she wanted the position. Mr Bitmead says he told her the decision would be made by her immediate supervisor and it would be improper for him to interfere in the process. He says Ms Kassa also raised with him the treatment of two Inghams employees, Francis Lopez (who gave evidence) and Pedro d'Cruz. While he was there, Ms Kassa's young daughter woke and came out to the lounge room.
69 Mr Bitmead claims that He says that, while sitting in Ms Kassa's lounge room, he realised what he was doing; he thought about his partner and the fact that Ms Kassa was smoking and the smell of the hookah put him off. Around 9pm he went to leave; she sat in his lap and asked if he had to go; he said he did; she kissed him on the lips and he responded, "more by way of a social than a sexual kiss". He says he then left.
70 Ms Kassa denies "absolutely" that Mr Bitmead visited her house on this occasion or ever. Apart from anything else, she says, she would not have been able to meet him out of hours because she has sole custody of her two young children and weekends are especially important times with them.
71 Counsel for Ms Kassa put it to Mr Bitmead that he learned what he knew about her house, and was able to draw the "mud map", from information given him by Ms Kassa's former husband who, it was
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- suggested, had an axe to grind with her. Mr Bitmead denied this, as did Mr Gebremariam.
72 Mr Sagrad Chendra Nigam, solicitor for Mr Bitmead, told the Tribunal that he started taking instructions around 6 October 2006. Mr Bitmead first drew a "mud map" of Ms Kassa's house on a writing pad in Mr Nigam's office. Mr Nigam asked him to get it properly drawn, and the following day, Mr Bitmead produced a version on his computer. Both drawings are in evidence. Mr Nigam's evidence was that he did not show to Mr Bitmead any of the respondents' witness statements.
73 We do not accept Ms Kassa's claim that this visit did not occur. Mr Bitmead has given quite a detailed account of her house and produced a drawing, neither of which has been shown to be inaccurate. We are satisfied that he made the drawing based on his own memory and not from any other source. Although Ms Kassa suggested that her children were not at home, no evidence has been put before us that they were not. Moreover, the phone records for 4 June 2005 showing a call at 10.57am and another at 5.59pm are consistent with Mr Bitmead's claims about calling her. We find that this visit happened.
74 Consideration of evidence about phone calls and SMS messages, and meetingsoutside work
75 Mr Bitmead presented as a frank and plausible witness. That is not to say that his conduct was appropriate as between a manager and an employee. He freely admitted making calls and sending SMS messages to Ms Kassa between about December 2004 and June 2005. He admitted he found her attractive and responded to her. He said he was "giving in to … hormones".
76 Mr Bitmead may have been somewhat disingenuous in describing himself, as he did at one point, as "definitely" "the little lamb" who responded to Ms Kassa's pursuit of him. However, he has not at any point, including when Ms Kassa complained to Inghams' general manager, Mr Peter Manning, denied his involvement with her. He volunteered that he went with her to Kings Park and that he visited her at her home. He has not suggested he did either unwillingly.
77 This is a matter in which the credibility of the principal witnesses is squarely in issue. It is not a case in which there is agreement as to material facts, but disagreement as to their significance. Ms Kassa and Mr Bitmead cannot both be believed on the matters which are central to the inquiry.
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78 We find Mr Bitmead a credible witness whose account of these matters has been consistent throughout. His evidence is not contradicted in any material respect. We are not satisfied that Ms Kassa has been truthful in her evidence about the phone calls and SMS messages, or about meeting Mr Bitmead outside work on these occasions. We find each of these happened as Mr Bitmead claims and that Ms Kassa either initiated or willingly reciprocated on each occasion and that the friendship was consensual and continued up until early July 2005.
Photo on mobile phone
79 Ms Kassa says that, in or about mid-May 2005, Mr Bitmead called her to his office and showed her a picture of a man's genitals on his mobile phone. She says she was very upset and humiliated at this and rushed from his office. She maintains she never heard the photo being discussed in the workplace, and knew of it only through her direct experience when Mr Bitmead showed it to her.
80 Mr Bitmead says that, on 17 March 2005, he bought a second-hand mobile phone through eBay. When he collected it from the vendor on 19 March, he noticed there were messages and information from the previous owner; while deleting that information he came across two photographs including a blurred photograph of male genitalia; he deleted all but the genitalia photograph, which he thought was funny. He says he showed it to Michael Genders and Keith Baker in his office, and some other male employees saw it; he showed it to his partner at home and deleted it after she asked him to. He denies ever showing it to Ms Kassa or any other female employee.
81 There is no direct evidence to support Ms Kassa's claim about this. We accept Mr Bitmead's evidence that he showed the photo to other male employees, and it is possible Ms Kassa learned about it through talk at the plant. On the other hand, nor can it be established that he did not show her the photo. However, her credibility has been so undermined by the findings about the phone records and meetings that we do not think she should have the benefit of the doubt.
82 Even if Mr Bitmead did show Ms Kassa the photo, however, in all the circumstances, we are not satisfied it was unwelcome conduct.
Vasectomy comment
83 Ms Kassa says that, in or about May or June 2005, her supervisor, Mr Genders, came to her and said Mr Bitmead wanted to see her in his
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- office; when she got there, Mr Bitmead said something like "What do you think about going out with me", to which she replied that he was married and he was not her "kind of guy". She says that, as usual, she felt obliged to be polite because she did not want to get him "offside". She claims Mr Bitmead said words to the effect that he thought the real reason she would not go out with him was that she was scared she might become pregnant, but she would not because he had had a vasectomy. Ms Kassa says she did not understand that word but told him it made no difference; no matter what, she would not go out with him.
84 Mr Bitmead says he underwent a vasectomy in about May 2005, for which he took two days leave; when he returned, Peter Pronk, a manager at Inghams who had recently had a vasectomy, joked that Mr Bitmead had needed two days leave whereas Mr Pronk had his operation in the surgery under local anaesthesia. Mr Bitmead says his vasectomy was common knowledge, but at no time did he discuss it with Ms Kassa.
85 Ms Kassa denies ever hearing in the workplace that Mr Bitmead had had a vasectomy; her knowledge comes only from her direct conversation with him.
86 We accept that Mr Bitmead's vasectomy was known by at least some employees and that Ms Kassa could have learned of it from them. Again, there is no direct evidence either way. However, even if he did make a comment to the effect claimed, we are not satisfied in all the circumstances, that it was unwelcome conduct.
Evidence of Fatah Hassan
87 Mr Hassan, who came to Australia from Somalia, was called by Ms Kassa to give evidence. He worked at relevant times in the same section as Ms Kassa at Inghams. He was friends with her and would spend time with her before rumours of the sexual harassment became known. After that, he said, he and others who were friends of hers felt under pressure to distance themselves from her. He also maintained he felt under pressure from Inghams to sign a statement for these proceedings, which he did not sign.
88 Prior to this, Mr Hassan and Ms Kassa took their breaks together and he would sit with her. Mr Bitmead would pass by their table and there was "always" discussion between him and Ms Kassa; they would "start smiling and talking to each other". Mr Hassan says that, because it was none of his business, he would leave them to talk to each other; he did not know what they talked about, but he described their conduct as
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- "[not] something to do with work". It wasn't about work; "They were both being unprofessional". Mr Hassan described a situation in which a conversation took place where Mr Bitmead was "going forwards" and Ms Kassa going backwards and Mr Bitmead kept on talking. To Mr Hassan's mind, she appeared like a person in an "untenable situation". We do not know when this last incident took place. It suggests possibly unwelcome conduct but we have little evidence about it and what we have does not displace the weight of the evidence generally, that Mr Bitmead's conduct was not unwelcome within the meaning of s 24 of the Act.
89 Under cross-examination, Mr Hassan said that, although he could not recall her exact words, Ms Kassa had told him that Mr Bitmead was her friend. He recalled her talking about the training officer position and telling him that "Lindsay is a friend … He will get … I will ... I can get the job". "Most likely I will get because Lindsay's - - we're just friends. [...] He's my friend. Maybe he will give it to me". Mr Hassan said Ms Kassa told him that Mr Bitmead had told her that whoever was qualified for the position would get it, and that she told Mr Hassan that was unfair.
90 Mr Hassan also gave evidence, which we accept, that he heard Ms Kassa invite Mr Bitmead to have coffee, although he could not be sure whether she had invited him to her house for coffee or merely to have coffee.
Promotion
91 In early June 2005, Ms Kassa applied for the position of training officer. She says that, shortly after making her application, she was called to Mr Bitmead's office where he told her that, although her work record was not good, "If you give me small, I will give you big … You scratch my back and I'll scratch yours".
92 Ms Kassa says she understood this comment to mean that, if she agreed to have sex with him, Mr Bitmead would give her the position. She says she rejected his proposal and later found out she did not get the job. She claims this was the final straw that gave her the courage to complain about the continuing pressure to which he was subjecting her, the repeated calls and comments and rumours about her in the workplace, and the worsening harassment.
93 Mr Bitmead denies Ms Kassa's assertions. He says that, about a week after he visited Ms Kassa at her house, Mr Baker, who at the
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- relevant time was employed as a superintendent at Inghams, told him he had heard "on the floor" that Ms Kassa had been telling others that Mr Bitmead was her boyfriend and she was going to get the training officer position. A few days later, Mr Genders told him that some workers on the boning line were saying that Ms Kassa was going to get the position, which was upsetting the other two applicants for the position. Mr Bitmead says he called Ms Kassa to his office and told her, in Mr Genders' presence, that she was creating unrest between the other applicants by what she was saying.
94 Mr Bitmead says that, after this, he stopped seeing Ms Kassa because it was clear to him that she was taking advantage of their friendly relations. Shortly after that, she made her claim of sexual harassment. He denies asking Ms Kassa for sexual favours either directly or indirectly in return for promotion, and maintains her complaint against him was motivated by her failure to get the promotion. In light of his credibility generally, and our findings about Ms Kassa's lack of credibility, we accept his evidence.
95 The timing of Ms Kassa's complaint, immediately following her failure to get the promotion, raises serious questions about what motivated her complaint.
Other matters going to credibility
96 We have already found Ms Kassa's evidence seriously lacking in credibility. Her credibility is further undermined by claims which are either contradicted by others or cannot be reconciled with her other evidence.
(i) Comments about race and discrimination
97 Ms Kassa denied repeatedly in oral evidence ever making statements about being discriminated against on the ground of her colour, and she specifically denied using any expression to the effect that she would "be like Mandela". However, her evidence was contradicted by witnesses, including her own.
98 Flora Dellavanzo, a union representative who was called by Ms Kassa, stated under cross-examination that Ms Kassa had mentioned to her (just when is not clear from her evidence) that she was being discriminated against because of her colour and picked on because of her colour. Ms Dellavanzo did not pursue the comment with her.
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99 We found Ms Dellavanzo to be a credible witness overall, and we accept her evidence.
100 Fatah Hassan, who was called by Ms Kassa, also recalled her saying that she was being discriminated against and picked on because of her colour, although he had not seen that himself. Mr Hassan was clearly uncomfortable giving evidence and clearly felt under some pressure, whether real or perceived, not to give evidence against the company. He maintained clearly, however, that he was being truthful in giving his evidence and we are satisfied that he was.
101 Diane Rikhraj, who worked with Ms Kassa for approximately two years up to 2002, also gave evidence, which included an incident in December 2001 as she and Ms Kassa left work one day. According to Ms Rikhraj, as they drove away in their cars, Ms Kassa was aggressive and threatening, and made statements to the effect that she would be successful in court in a complaint about Ms Rikhraj because she was a black woman in a white country, and that Inghams would never sack her because she was black.
102 Ms Kassa denies making these comments. However, Ms Rikhraj impressed us as a credible witness and we accept that Ms Kassa made statements to this effect.
103 Keith Baker, who at material times was a superintendent at Inghams,also gave evidence that Ms Kassa had said she would "win" […] because she was black; "I've won. Black power", or words to that effect. It is not entirely clear when this comment was said to have been made. However, we found Mr Baker to be a credible witness and we accept this evidence.
104 Peter Manning, who at the time was Inghams Western Australian general manager, gave oral evidence and produced his diary for the period around the time of Ms Kassa's complaint about Mr Bitmead. His diaries recorded at the time various goings on at the plant, including his dealing with Ms Kassa's complaint. He gave evidence that he recorded notes in his diary each day and was confident of their accuracy.
105 Mr Manning's diary notes for 19 July 2005 refer to a meeting that day with Mr John Mossenton, AMWU organiser, and Ms Kassa, and include the following:
"Other points made by her were that she is being discriminated against because of her colour"
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106 and
"she knows her rights and coloured people are discriminated against She will be like Mandela".
107 Mr Manning impressed us as a credible and reliable witness. It was evident from the notations in his diary and from his oral evidence that he did not regard Ms Kassa unfavourably. His diary for 31 August records Ms Kassa having said she could not control herself when Mr Bitmead came onto the floor and that he "spoke to Lindsay and Mike to move her to another area when Lindsay goes into that area of the factory". On 19 August, he records Ms Kassa saying she felt uncomfortable when Mr Bitmead came on to the floor and that he had "offered [her] a position at the hatchery but she declined it".
108 Counsel for Ms Kassa invites us to infer, from the detailed entries in his diary about conversations with Ms Kassa and the lack of detailed notes of his conversations with Mr Bitmead, that Mr Manning kept his notes as a "protective" and "preventative measure" in the event of proceedings such as these; by implication, we might infer the notes are not objective but designed to shore up the company's position.
109 We found Mr Manning to be a most credible witness who harboured no ill feelings towards Ms Kassa, and that his notes record as accurately as possible what occurred each day. Ms Kassa's complaint was serious, and it is evident from his diaries that Mr Manning took it seriously. He met with Mr Mossenton on 6 July, the day after Mr Mossenton brought the complaint to his attention, and he set in train an investigation. His notes are consistent with a senior manager acting properly in the circumstances and being mindful of possible litigation.
110 We accept Mr Manning's evidence, and that his notes record comments made by Ms Kassa. In the face of her repeated denials that she ever said anything like this, this finding further undermines her credibility.
(ii) Whether Ms Kassa was aware of her rights
111 In her written statement given in evidence, Ms Kassa states:
"It was not explained to us at any time that I recall what sexual harassment or discrimination were and what could be done about it in the workplace if it happened. Throughout my
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- experiences leading to this complaint, I never knew of any way of complaining without fear of bad results for me in my job".
112 Ms Kassa says of the SMS messages from Mr Bitmead that she "did not know what to do with them". She says she does not recall being given a pro forma letter in 1998 about sexual harassment and discrimination but says that, even if she had been given it, she would not have understood it because her English was not good enough at the time.
113 Ms Kassa joined the AMWU in 1999. She gave evidence that she knew the union would protect her if she had problems with management. On several occasions prior to her complaint about Mr Bitmead, she contacted, or said she would contact, the union for assistance. In mid2003 she went to the union about her maternity leave after being given inaccurate information by her supervisors. At the end of 2004, an incident occurred involving her husband and another man in which she believed Mr Bitmead was more interested in punishing the other man for paying her attention, than her husband, who she considered responsible for the incident; she said she would go to the union if he and Mr Genders called in the other man; in the event, they did not call him in. She also went to the union in April 2005 about alleged harassment by another female employee.
114 Ms Kassa's claim that she did not know what to do about the SMS messages, and her failure to complain about the alleged harassment until June 2005, are difficult to reconcile with the fact that she knew what the union could do for her, and that she sought its assistance at different times.
115 Ms Kassa maintains she did not go to the union about Mr Bitmead's conduct until July 2005 because he was the boss and part of the circle of power at Inghams. However, her evidence was that she did not tell Ms Dellavanzo about it until June 2005 and had been "too embarrassed" to tell her before then.
116 Ms Kassa says she talked to Francis Lopez, also a union representative, at some point before not getting the trainer's position, about "this ongoing harassment and unfair treatment", but she was embarrassed to talk about it; Mr Lopez told her that allegations of sexual harassment were serious and she would need proof; this "added to my worry about doing anything about the matter". She says she did not show Mr Lopez the SMS messages because she was unsure what steps to take, she was embarrassed and she was afraid of the consequences.
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- She eventually showed him the SMS messages when Mr Bitmead's behaviour "became unbearable" and she lost out on the promotion. As a result, they went to Mr Mossenton.
117 Francis Lopez, who was called by Ms Kassa, gave evidence that, from around February 2005, Ms Kassa was telling him she had a problem with Mr Bitmead but she told him "nothing at all" as to what it was about; had she told him about a serious matter such as sexual harassment, he would have done something about it. He says the first time Ms Kassa told him, and other union delegates, about the harassment was at meeting with him, Mr Mossenton, and other delegates, after she did not get the promotion.
118 That it is difficult for an employee to openly allege sexual harassment against a manager is indisputable. However, we do not accept Ms Kassa's explanation for not complaining earlier about Mr Bitmead's alleged conduct: she was aware that she could complain to the union; she could have done so confidentially. What she was "too embarrassed" to talk about is not clear.
119 The mere fact that Ms Kassa did not complain until after she did not get the promotion does not, of itself, undermine the credibility of her claims generally, but it raises questions as to why she did not complain earlier. The inference open to us is that there was nothing to complain about.
120 In all the circumstances, we find that Ms Kassa did not complain about the alleged harassment until July 2005 because it was not until then that she considered Mr Bitmead's conduct unwelcome and she did not consider it to be harassment.
The evidence of Zaneyba Hassan
121 Ms Hassan, who worked briefly with Ms Kassa at Inghams, gave evidence under a summons issued at the respondents' request. On the first occasion, no interpreter was available. Ms Hassan gave evidence another day when an interpreter was available by telephone from Sydney. This arrangement proved very unsatisfactory. Although, if believed, Ms Hassan's evidence would have been damaging to Ms Kassa, we consider the problems with interpreting too serious to rely in any way on Ms Hassan's evidence.
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The doctors' evidence
122 We heard from Dr Rebecca Adams, a consultant psychiatrist, who saw Ms Kassa on referral from her general practitioner, and from Dr Gemma Edwards-Smith, a consultant psychiatrist who assessed Ms Kassa at the request of the second respondent.
123 Dr Adams first saw Ms Kassa on 31 May 2006 and on six subsequent occasions. She diagnosed Ms Kassa as suffering from severe Major Depressive Disorder with melancholic features and PostTraumatic Stress Disorder.
124 Dr Edwards-Smith also made a diagnosis of major depressive disorder based on Ms Kassa's history of events and her description of her depressed mood, although she disagreed with Dr Adams' diagnosis of melancholic features. However, she found atypical features, in that Ms Kassa did not feel worthless as might be expected; in fact, "she retains a very strong sense of self-esteem and describes herself as a confident and proud woman". In addition, Dr Edwards-Smith notes, "there was very clear evidence of affective reactivity rather than the pervasive quality of depressed or dysphoric effect one would expect in the context of a major depressive episode". However, Dr Edwards-Smith agreed that, assuming Ms Kassa's account of events to be true, major depressive illness would be the most relevant diagnosis.
125 Both doctors agreed that, if the facts on which their opinions were based were not true, that would alter their diagnosis. Both agreed that it is not difficult for a patient to manufacture symptoms and that doctors are largely reliant on the patient's account. However, Dr Adams was of the view that the more a psychiatrist meets with a patient, the more able they are to distinguish truth from malingering.
126 On balance, we prefer Dr Edwards-Smith's evidence to that of Dr Adams. She is an independent expert witness, whereas Dr Adams had taken on, to quite some degree, the role of advocate for Ms Kassa as well as treating psychiatrist. For instance, she helped Ms Kassa complete workers compensation claim forms. That is not to denigrate in any way Dr Adams' holistic approach to Ms Kassa's treatment, but Dr EdwardsSmith is clearly the more independent and, in our view, more objective.
127 What is significant is that both doctors agree that, if the facts on which their diagnosis is based were found not to be true, their diagnosis would be altered.
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128 For the reasons set out here, we are not satisfied that Ms Kassa's account of her dealing with Mr Bitmead is truthful. She may well be depressed but we are not satisfied it was, or is, for the reasons she claims.
Conclusion
129 As we have noted above, much of what we have heard is about matters not directly relevant to what we have to decide, and much of it seeks to establish matters from which we might draw inferences about the parties generally.
130 The questions before us for determination are whether Mr Bitmead's conduct amounted to sexual harassment within the meaning of the Act and, if so, whether the second respondent is also liable for his conduct.
131 The essence of sexual harassment for the purposes of the Act is an unwelcome sexual advance, or an unwelcome request for sexual favours, or unwelcome conduct of a sexual nature in relation to the complainant. Whether or not a complainant believes she or he would suffer by rejecting an advance, or request, or conduct, arises only if it was unwelcome.
132 Credibility is squarely in issue here. For the reasons set out above, we do not accept that Ms Kassa has been truthful about matters which go to the heart of her claim. We find she made calls to Mr Bitmead and went with him to Kings Park and that he visited her at her house as he claims. Her credibility is further undermined by our findings about her evidence as to whether she ever made reference to her colour and what she knew of her rights. We find she either initiated, or was a willing participant in, the relationship up until the time of her complaint.
133 We find that Ms Kassa and Mr Bitmead had a consensual relationship that developed around the end of 2004 and continued until around June 2005. We are not satisfied that any of the conduct complained of was unwelcome.
134 We are satisfied that, had Mr Bitmead's conduct been unwelcome and therefore sexually harassing, Ms Kassa would have recognised it as such. In our view, she was well aware of her rights and quite capable of asserting them. Even allowing for the risks involved in alleging sexual harassment by a manager, we are satisfied that, if Mr Bitmead's conduct towards her was unwelcome, she could have, and would have, made her complaint known, even if in confidence to a union representative.
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135 Whether Ms Kassa was motivated by her failure to get the promotion to make her complaint we cannot be sure. However, we are satisfied that, prior to that time, Mr Bitmead's conduct was not unwelcome.
136 As we are not satisfied that any conduct on Mr Bitmead's part amounted to sexual harassment within the meaning of the Act, there is no conduct for which the second respondent can be found liable pursuant to s 161 of the Act.
137 Accordingly, we dismiss the application against both respondents.
138 The question of the costs of the application was not raised during the hearing. In the circumstances, the Tribunal will give the respondents an opportunity to apply for costs, subject to any application being made without undue delay.
Orders
1. The application against the first respondent is dismissed.
2. The application against the second respondent is dismissed.
I certify that this and the preceding [139] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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