Kennedy v ADI Ltd
[2001] FCA 614
•25 MAY 2001
FEDERAL COURT OF AUSTRALIA
Kennedy v ADI Ltd [2001] FCA 614
DOROTHY JOY KENNEDY v ADI LIMITED (ACN 008 642 751)
RYAN J
MELBOURNE
25 MAY 2001
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V512 of 2000
BETWEEN:
DOROTHY JOY KENNEDY
ApplicantAND:
ADI LIMITED (ACN 008 642 751)
RespondentJUDGE:
RYAN J
DATE OF ORDER:
25 MAY 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS:
1. THAT the application be dismissed.
2.THAT the applicant have leave to file and serve by 8 June 2001 submissions in writing confined to the issue of what order (if any) should be made, in the light of the reasons published this day, in respect of the costs of the application.
3.THAT any written submissions in answer to those filed and served pursuant to paragraph 2 of this Order, be filed and served by 15 June 2001.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V512 of 2000
BETWEEN:
DOROTHY JOY KENNEDY
ApplicantAND:
ADI LIMITED (ACN 008 642 751)
Respondent
JUDGE:
RYAN J
DATE:
25 MAY 2001
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There is before the Court an application pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (“the HREOC Act”), alleging unlawful discrimination by the respondent (“ADI”) against the applicant, Ms Kennedy. The acts of discrimination of which the applicant complained, were said to be unlawful in contravening the Sex Discrimination Act 1984 (“the SDA”). By her application, the applicant sought an apology from ADI and compensation in the sum of $150,000.
The applicant had earlier, on 25 February 2000, made a complaint to the Equal Opportunity Commission (“the Commission”) against ADI alleging “sexual harassment and discrimination on the basis of sex in employment”. The accompanying statement of complaint was in the following terms;
“In 1996 I was employed by Australian Defence Industries Pty Ltd (‘ADI’) as an Accountant.
While I was working I often heard male employees say that they had had sex with female employees. These comments made me very uncomfortable.
On one such occasions, I heard an employee, Arthur Godfrey, tell another male employee that he had sex with a female employee.
On another occasion I heard one male employee say to another, “she’s the one to pluck”. I understand the male employee was referring to me when he made this comment.
As a result of this treatment I resigned in writing from ADI in March 1996.
I applied for social security which reduced my income. This made it difficult to raise my two sons.
Consequently I believe that I have been sexually harassed and discriminated against on the basis of sex in employment.
I was not aware of my rights under equal opportunity legislation until recently and that is why I have not complained until now.”
After reviewing the complaint, a delegate of the President of the Commission on 15 June 2000 exercised the discretion conferred by s 46PH(1)(d) of the HREOC Act to terminate the complaint, principally on the ground that it had been lodged more than twelve months after the alleged acts of sexual harassment. Accordingly, the applicant exercised the right conferred by s 46PO of the HREOC Act to apply to this Court. Section 46PO provides, so far as is relevant;
“(1) If:
(a)a complaint has been terminated by the President under section 46PE or 46PH; and
(b)the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(2)The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(3) The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)an order requiring a respondent to employ or re-employ an applicant;
(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f)an order declaring that it would be inappropriate for any further action to be taken in the matter.”
The Evidence
The evidence-in-chief of the applicant is contained in an affidavit sworn 1 December 2000 in which she has deposed that she was recruited by ADI in about May 1995 to work as a book-keeper for two years on a project which ADI had undertaken jointly with another company, Bains-Harding, to demolish a power station at Yallourn which had been decommissioned by the State Electricity Commission of Victoria. It seems that the applicant was interviewed by the then project manager, Mr George Zekan, and later offered the position by letter dated 26 May 1995.
Ms Kennedy commenced work in late May 1995 and initially travelled daily to Yallourn while she continued to live at Mt Eliza. After about a month, she moved with her two teenage sons to Newborough in the Latrobe Valley and lived there in rented premises until after the termination of her employment by ADI. Paragraphs 5, 6 and 7 of the applicant’s affidavit are in these terms;
“There were about 8 staff working in the project office, comprising about 4 managers and 4 clerical and administrative staff. The managers were men and the clerical and administrative staff were women. There were also a large number of demolition workers who worked on the project. As far as I know the demolition workers were all men.
Initially, the Project Manager was George Zekan, and I reported to him. Later on he was removed from the position of Project Manager, and Keith Morgan took over the position. Arthur Godfrey was the head engineer for the project and I understood that he was also a member of the ADI board.
Within a few weeks of starting work for ADI at Yallourn I became aware that there was a fair amount of sexual contact between the men and women working in the office. I became aware of this from my own observations of interactions between people in the office, such as flirting and making arrangements to meet after work. My observations were confirmed by comments made to me by others, in particular Norm Rust and Paul Sinnett.”
Mr Rust was a union shop steward for the demolition workers. He was on friendly terms with the applicant and, according to her, gave her warnings to “stay away from the managers”. It seems from her affidavits that those warnings were given in the context of observations by Mr Rust to the applicant, to the effect that “one or other of the managers” was having sexual relations with “one or other of the other women” who worked in the office with the applicant.
Mr Sinnett was ADI’s human resources manager who had come from Melbourne. Like Mr Rust, he befriended the applicant and, according to her, warned her several times to “just behave” herself and “not to get involved with the sleeping around in the office”, advice which, the applicant says, she was “prepared to take”.
By par 10 of her affidavit, the applicant has deposed;
“There was also an ADI manager from Sydney who came down to Yallourn about once a fortnight. I cannot recall his name. He made a number of comments to the effect that I should not get involved with any of the men in the office. I distinctly recall in about August 1995 he told me that Arthur Godfrey had prostitutes in his hotel room after work, and warned me to be careful of him.”
Despite the opportunity for further recollection since swearing her affidavit, and notwithstanding prompting by the names of several ADI staff members mentioned to her in cross-examination, the applicant has not been able to recall the name of the person referred to in that paragraph or the precise position which he held within ADI.
In about August or September 1995, according to Ms Kennedy, tensions developed between ADI and Bains-Harding over the conduct of the joint project and Mr Zekan was replaced as project manager by Mr Keith Morgan. Mr Zekan, it appears, remained on site as engineering manager. At about the same time, the receptionist then working in the office, Karen George, commenced a sexual relationship with Lyndon Baxter, the site financial manager, who was employed by Bains-Harding. According to the applicant, Ms George’s husband found out about that relationship and left his wife, which “caused a lot of unrest in the office at the time”.
The applicant’s affidavit then continued;
“14. In about October 1995 I walked past George Zekan's office and heard him say to Lyndon Baxter “She'd be right if she joined in and became one of us.” I understood him to be referring to me, and to the fact that I did not join in the promiscuous behaviour of the others in the office. He could not have meant that I did not join in socially, because I did mix socially with the other people in the office, for example going out for drinks or for dinner.
15.In about November 1995 I overheard one of the managers say to Arthur Godfrey and George Zekan “She's the one to pluck.” The conversation between the 3 men took place in George Zekan's office, and I could see and hear them from where I was sitting in my office. I cannot now recall the name of the man who made the remark, although I do recall that he was a contract manager. After the remark had been made the men looked around, looked at me, and then hushed up. I heard nothing further. I understood them to have been talking about me. At the time I was the only woman working in the office who had not had a sexual relationship of some sort with one of the men. I felt that I was being singled out because I would not join in that kind of behaviour.
16.By the end of 1995 I was very uncomfortable with my working environment. I did not feel that I could approach any of the managers about the way the other people in the office were behaving and the way it was making me feel. The last straw for me was in about January 1996, when Norm Rust relayed a comment that Arthur Godfrey had made about one of the other women he had slept with. It was a derogatory comment about the woman's personal hygiene. It made me feel sick in my stomach that one of the managers would have sex with a woman he worked with, and then talk about her in that way to other men at work.
17.I could not cope with it any more, and I resigned in February 1996. I wrote out a resignation letter and submitted it. I cannot recall the exact words I used, but I did say that ADI was not an equal opportunity employer and that I had been discriminated against. I think I also said that the job was too rough for me. I did not keep a copy of the letter.”
Under cross-examination by Counsel for ADI, Ms Kennedy accepted that she had only learned of the relationship between Ms George and Mr Baxter from “talk around the office”. Neither of them had talked about the affair. Similarly, Ms Kennedy accepted that the allegation that Mr Godfrey had entertained prostitutes in his hotel room had been made by “other men on the job”. She acknowledged that Mr Godfrey came to Yallourn from Sydney approximately once a month, although more frequently towards the end of the project. On occasions he stayed for only one day but on others he was at Yallourn for several consecutive days. The reference to his consorting with prostitutes, the applicant said, had been made by the unidentified Sydney manager referred to in pars 8 and 9 above, to a group which included Mr Rust, Mr Sinnett and possibly a demolition worker. The applicant accepted that Mr Godfrey appeared to her to be a serious person and that she had never seen him with a woman outside working hours. It is also significant that the applicant did not persist in her affidavit or at the hearing of the application with the allegation made in the statement accompanying her application to the Commission that she heard Mr Godfrey “tell another male employee that he had sex with a female employee”. Mr Godfrey, on his visits to Yallourn, made routine enquiries of the applicant about the operations of the computer system which he had set up and about her workload. She never told him of any difficulties she was experiencing as a result of anything in the nature of sexual harassment or discrimination.
The applicant claimed to have been “warned” shortly after starting work in May or June 1995, to beware of “any person who might be in charge of the project”. That warning, she said, was given once by each of Mr Rust, Mr Sinnett, Mr Schultz and the unidentified Sydney manager.
The applicant also said in the course of cross-examination that Mr Zekan had conducted a sexual affair with the first receptionist who had been replaced by Karen George. As well, she suggested that Mr Zekan and Mr Baxter had recruited female staff, including a part-time payroll clerk named “Liz”, with a view to establishing sexual liaisons with them. However, she accepted that no suggestion of that kind had been made to her before Zekan and Baxter had engaged her to work at Yallourn. She further acknowledged that the two men did not get on well with each other. The applicant also adduced evidence from one of her sons, Michael Kennedy, that while he was living with his mother he noticed that she returned home depressed and upset because, as he perceived, one of her “bosses” was not treating her as she thought he should have.
Mr Arrowsmith, the senior ADI employee involved in the Yallourn project, gave evidence that he had been chairman of the committee responsible for conducting the joint venture between ADI and Bains-Harding. The other ADI representative on the committee had been Mr Godfrey who reported to Mr Arrowsmith. Mr Arrowsmith’s responsibilities required him to travel from Sydney to Yallourn approximately every fortnight, the duration of each stay being from one to three days. Mr Arrowsmith deposed that when his visits to Yallourn coincided with those of Mr Godfrey, they always dined together and stayed at the same motel. Mr Arrowsmith had no knowledge of Mr Godfrey’s receiving a prostitute in his motel room and regarded Godfrey as a mature, stable and responsible person who was sober in his habits and generally conservative in his demeanour.
Mr Arrowsmith also gave evidence of steps taken by ADI at Yallourn and elsewhere to implement a policy designed to eliminate sexual harassment or discrimination. Those steps included the dissemination of a written document entitled “Sexual Harassment - Policy” which was brought to the notice of new employees as part of the induction process. That document, which was also pinned on noticeboards in the workplace, recited under the heading “What is Sexual Harassment”:
“3. Sexual harassment is behaviour which is unwelcome and offends, humiliates or intimidates the person who is subjected to it. It is also behaviour which interferes with the employee’s performance at work or creates a hostile work environment.
4. It is not friendships between co-workers - such relationships between people (sexual or otherwise) are a private concern.
5. Whether sexual harassment has occurred is dependant (sic) upon the perceptions of the person who is being harassed. It may consist of any of the following:
·Unwanted comments or questions about a person’s private life.
·Persistent unwelcome social invitations or telephone calls whether at work or home.
·Unwanted terms of address such as dear, love, sweetheart, etc.
·Offensive comments, jokes or gestures.
·Offensive pin-ups and posters in the workplace.
·Provocative dress in the workplace.
·Unwanted comments about a person’s appearance or body.
·Innuendo or sexually explicit conversations whether directed to or merely overheard by others.
·Unnecessary familiarity such as deliberately touching or brushing against a person.
·Unwanted sexual propositions, comments, demands or advances.
·Unwelcome requests for sex or forced sexual activities.
·Jokes, insults or taunts based on a person’s sexuality whether directed towards the complainant or others.
·Demeaning comments, actions or remarks based on gender distinctions.”
Under the heading “How to deal with Sexual Harassment” the policy document recommended:
“7. Any person who is being sexually harassed has the right to complain and take action. It is preferable for complaints to be raised after the first or second occurrence rather than to say nothing and allow the offences to be repeated. If you experience the problem you should either:
·Complain about the behaviour direct to the person harassing you, telling them that the situation is unacceptable to you. However, you are not obliged to adopt this approach unless you feel comfortable about achieving a satisfactory outcome, or
·Report the matter to either your supervisor, the Sexual Harassment Contact Officer (who is listed in the telephone directory) or the Sexual Harassment Coordination Officer. Both of the latter people have been specifically trained to assist in resolving your problem and can help you deal with it in a confidential way. You may also wish to notify your union delegate, if appropriate.”
ADI adduced evidence from Mr Godfrey and Mr Zekan. The former deposed that he had attended the Yallourn site from March or April 1995 to participate in site management meetings. Occasionally he needed to stay at the site for two days at a time. He usually dined at Yallourn in the evening before a site meeting with Mr Zekan and, occasionally, with site representatives from Bains-Harding or Mr Arrowsmith or Mr Cassie, the ADI asbestos manager for the project. The only female staff at Yallourn whom Mr Godfrey recalled were the applicant, Karen George and a project health and safety officer. Mr Godfrey had been aware of the relationship between Ms George and Mr Baxter which he had discussed with Mr Zekan because both of them were concerned about its potential to create problems in the workplace if it “went sour”. Mr Godfrey had no recollection of Mr Malcolm Adams or any other manager saying in the presence of himself or Mr Zekan “she’s the one to pluck”.
Mr Godfrey unequivocally denied having had, or claiming to have had, sexual contact with Ms George or any other female employee associated with the Yallourn project. Equally strenuously, he denied having spoken to Mr Rust or anybody else about the sexual or personal hygiene of any woman. He contended that it would have been most inappropriate for him, as a management representative, to have compromised himself in that way with an organizer or delegate of one of the unions with which ADI was in negotiations.
Mr Zekan corroborated Mr Godfrey’s evidence about the latter’s movements and habits on his visits to Yallourn. In addition to the female staff noted by Mr Godfrey, Mr Zekan recalled the presence of a “part-time secretary named Sue”. From something said outside office hours he became aware of the relationship between Ms George and Mr Baxter but disputed the applicant’s claims that “there was a fair amount of sexual contact between the men and women working in the office”. Mr Zekan also denied that a woman called “Liz” had worked in the project office. He emphatically rejected the suggestion that he had engaged any women to work on the site with the intention of himself or any other man having sex with them.
Like Mr Godfrey, Mr Zekan had no recollection of Malcolm Adams or anybody else saying in the presence of them both, or at all, “she’s the one to pluck”. He also denied making a comment to Mr Baxter to the effect that “she’d be right if she joined in and became one of us”. Mr Zekan’s evidence, not contradicted by the applicant, was that she made no complaint to him about any form of sexual harassment, although he was aware of a personality clash between the applicant and Mr Baxter which he attributed to the latter’s arrogance.
Findings of fact.
I am not satisfied that there was, as the applicant claims, “a fair amount of sexual contact between the men and women in the office”. The affair between Ms George and Mr Baxter is common ground and it seems that, after that ended, Ms George formed another liaison with a man who worked on site but not in the office. There is no evidence that Ms George flaunted her conquests or boasted of them during working hours. I find that there was no sexual conduct or general conversation in the workplace which was calculated to offend or discomfit the applicant or any other female employee.
The allegation that Mr Godfrey consorted with prostitutes in his motel room was based purely on hearsay attributed to a Sydney manager who remained unidentified. The applicant, therefore, claims to have been affected only by the report of the alleged conduct. As I understand it, Ms Kennedy regarded this statement as made to her as part of a “friendly warning” to be on her guard against Mr Godfrey and others in managerial positions at the site. In that sense, it was similar in character to the “warnings” said to have been given to the applicant by Mr Sinnett, Mr Rust and Mr Shultz. Despite efforts by each party to contact them, neither the applicant nor ADI was able to procure the attendance of any of those persons to give evidence. I therefore draw no inference from the absence of testimony from them. However, in the light of all the evidence, I am fully satisfied that there was no factual foundation at all for the remark about Mr Godfrey and prostitutes if it was made as alleged by the applicant. The applicant gave her evidence in a calm, even unstated manner, and had she set out to fabricate incidents or embellish her account to give substance to her claim of sexual discrimination, her allegations could have been much more lurid than they were. I have therefore made every allowance in favour of the applicant which is due to her demeanour and generally frank readiness to acknowledge gaps in her evidence. Nevertheless, I am left with the impression that, perhaps because her perceptions have been distorted by acts of alleged “victimisation”, which she says are being investigated elsewhere, she has misremembered or misconstrued statements made by others to her or in her presence on which her case has been founded. I am unable to find on the balance of probabilities that remarks about Mr Godfrey and prostitutes were made to the applicant as she alleges. If contrary to this finding they were made, it is likely they were an attempt to extract a low form of humour from their extreme improbability or were no more than scurrilous and malicious gossip.
Similar difficulties attend the statement attributed to Mr Zekan that “she’d be right if she joined in and became one of us”. The statement, as recalled by the applicant, is far from explicit, either in its meaning or its reference to the applicant rather than some other female. Its true import depends very much on the context in which it was made which the applicant has been unable to provide. Mr Zekan was not shaken in his denial that he made any such remark. That being the state of the evidence, I am not satisfied, on the balance of probabilities, that the remark was made by Mr Zekan in the terms alleged and with reference to the applicant. Even if that conclusion be wrong, the evidence does not permit a finding that whatever Mr Zekan said to Mr Baxter was directed to, or intended to come to the notice of, the applicant.
Observations to the same effect can be made about the statement attributed to the man, identified in the course of the hearing as Malcolm Adams, ADI’s contracts manager, that “she’s the one to pluck”. That statement, if made, was also inherently ambiguous both in meaning and reference. Both Mr Zekan and Mr Godfrey denied having heard any statement to that effect. To compound the difficulties which the applicant faces in respect of this allegation, she claimed in para 15 of her affidavit, reproduced at par 11 of these reasons, that the statement had been made in Mr Zekan’s office and that from her own office she had heard it and observed the reaction of the participants in the conversation which, I infer, she regarded as reflecting some consciousness of guilt and an acknowledgment that Adams’ remark concerned herself. However, under cross-examination, the applicant conceded that it was impossible to see or hear from her office anything which was done or said in Zekan’s office. That concession prompted the applicant to correct her account by claiming that the statement had been made by Adams in his own office. It is also significant that nothing was done after the making of Adams’ alleged statement to terminate the applicant’s services or otherwise injure her in her employment.
In these circumstances, I find it highly improbable that any remark of the kind alleged by the applicant was made with reference to herself. Moreover, even were I to accept the evidence of the applicant in preference to that of Zekan and Godfrey, it would not establish that the remark was intended to be heard by the applicant. The reasoning set out in par 23 above in relation to the alleged assertion that Godfrey was in the habit of receiving prostitutes in his motel room applies with equal force to the claim that Godfrey had made an unsavoury remark to Rust about “one of the other women he had slept with”. In the course of the hearing the applicant identified that other woman as Ms George. I accept Mr Godfrey’s denial of any sexual contact with Ms George or any other employee associated with the project. I also regard it as inherently improbable in the extreme that Godfrey would have claimed, or falsely boasted of, any contact of that kind to Rust. Accordingly, if the accusation was made by Mr Rust to the applicant, it was made without foundation and as a scurrilous or malicious piece of conversational titillation.
The applicable law.
It will be recalled that the applicant’s application to the Commission under the HREOC Act stipulated that the acts of which she complained were unlawful as being in contravention of the SDA. “Sexual harassment” is defined by s 28A of the SDA, which provides;
“(1)For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b)engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”
Section 28B of the SDA makes it unlawful, amongst other things, for a person to sexually harass an employee of that person. Section 106 makes an employer vicariously liable for the unlawful acts of employees and agents, by providing;
“(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 Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b)an act that is unlawful under Division 3 of Part II;
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 (1)(a) or (b) 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.”
In the present case, the applicant claims to be the person harassed within the meaning of s 28A(1) of the SDA. The evidence which I have recounted does not suggest that any employee or agent of ADI made a sexual advance or request for sexual favours to the applicant. Accordingly, the application falls to be determined by reference to whether an employee or agent of ADI engaged in other unwelcome conduct of a sexual nature in relation to the applicant. Although there was reference in the evidence to “a fair amount of sexual contact between the men and women working in the office”, I have declined to make a finding to that effect. In any event, the sexual contact to which the applicant referred was not with her and those engaging in it could not, in the circumstances, have reasonably anticipated that the applicant would have been offended, humiliated or intimidated.
On this analysis, the remainder of the applicant’s claim has to be assessed by reference to alleged conduct consisting of the making of oral statements of a sexual nature to the applicant or in her presence.
The statement by Mr Rust that one of the managers was having a relationship with one of the women in the office was of a sexual nature but it was made, according to the applicant, by way of a friendly warning so that, even if Rust had made it in the capacity of an employee or agent of ADI, he could not reasonably have anticipated that the applicant would be offended, humiliated or intimidated by the mere making of the statement.
I have indicated in par 23 above that I have not been persuaded that the remark about Mr Godfrey consorting with prostitutes was made to the applicant. If, contrary to that finding, such a remark was made, it was understood by the applicant as being in the nature of a “friendly warning” so that, for the reasons explained in the preceding paragraph, the person making it could not have anticipated that the remark itself (as distinct from what it conveyed, which I have found to be untrue), would have offended, humiliated or intimidated the applicant.
The remark which Mr Zekan is said to have made to Mr Baxter that “she’d be right if she joined in and became one of us” was capable of being of a sexual nature if it were understood as contemplating that the applicant should join in the promiscuity which she perceived as pervading the office. However, I have already indicated my inability to find that such a remark was made. As well, the circumstances in which the applicant asserts it to have been made would preclude a finding that it had been made to the applicant or in her presence.
Similar considerations apply to the remark attributed to Malcolm Adams that “she’s the one to pluck”. If contrary to my finding, that remark was ever made, it was only capable of having a sexual nature if it meant that the applicant was ripe for sexual exploitation. Even giving it that interpretation in the applicant’s favour, the facts recounted in par 25 above preclude a finding that it was made to the applicant or in her presence and consequently a finding that the maker of the statement could reasonably have anticipated that it would offend, humiliate or intimidate the applicant.
Finally, the statement allegedly made by Mr Godfrey about the personal hygiene of one of his sexual partners and said to have been passed on to the applicant by Mr Rust was clearly of a sexual nature. I’ve already found that Rust’s statement, if made, was untrue. I also consider that, in the circumstances in which it was made, as recounted by the applicant, it was not made by Mr Rust in his capacity as an employee or agent of ADI. The applicant’s offended reaction to it was clearly enough to the conduct it imputed (untruthfully as I have found) to Mr Godfrey. It could therefore not have been anticipated by the person engaging in the conduct, ie Rust, that his conduct, being the making of his statement to the applicant, would itself have offended, humiliated or intimidated her.
Conclusion.
For the reasons which I have endeavoured to explain, the applicant has not discharged the onus of proving, in any of the respects alleged, unlawful sexual harassment by an employee or agent of ADI. The application must therefore be dismissed. In anticipation of such an order, Counsel for ADI contended that the general rule of costs following the event should apply and that an order should be made that the applicant pay the respondent’s costs of the application to this Court. However, before deciding what, if any, order as to costs should be made, I shall afford the applicant an opportunity to file and serve by 8 June 2001 submissions in writing confined to that issue. Any answering submissions on behalf of the respondent should be filed and served by 15 June 2001.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate:
Dated: 25 May 2001
The Applicant appeared in person. Counsel for the Respondent: Mr D Staindl Solicitor for the Respondent: Minter Ellison Date of Hearing: 21, 22 and 23 May 2001 Date of Judgment: 25 May 2001
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