Maszlik v Sunrise Seafood Pty Ltd
[2011] QCAT 74
•15 March 2011
| CITATION: | Maszlik v Sunrise Seafood Pty Ltd [2011] QCAT 74 |
| PARTIES: | Miranda Maszlik |
| v | |
| Sunrise Seafood Pty Ltd (First Respondent) Po Chieh Ko (Second Respondent) |
| APPLICATION NUMBER: | ADL052-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 8 February 2011 |
| HEARD AT: | Bundaberg |
| DECISION OF: | Ms Michelle Howard, Member |
| DELIVERED ON: | 15 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – where referral from Anti-Discrimination Commission Queensland for alleged contraventions of sexual harassment, victimisation and discrimination in the area of work on the basis of the attribute of sex – where applicant makes inconsistent allegations Anti-Discrimination Act 1991 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self |
| RESPONDENTS: | Mr S T Courtney, Counsel, instructed by Payne Butler Lang |
REASONS FOR DECISION
The applicant made a complaint to the Anti-Discrimination Commission Queensland (ADCQ) on 29 May 2009. The complaint was accepted regarding allegations made in time under section 138 of the Anti-Discrimination Act 1991 (the Act) on 10 June 2009, and regarding out of time allegations on 9 October 2009.
On 1 July 2010, the ADCQ referred the complaint to the Queensland Civil and Administrative Tribunal (QCAT or the tribunal) for alleged contraventions namely, sexual harassment, victimisation, and discrimination in the area of work on the basis of the attribute of sex.
The complaint arises out of events which Ms Maszlik (the applicant or the complainant) alleges occurred while she was employed by Sunrise Seafood Pty Ltd (Sunrise Seafood or the first respondent) primarily as a result of the actions of Mr Po Chieh Ko, who is also known as Eric Ko (the second respondent), a director of Sunrise Seafood, after her separation from her husband in February 2008. Some allegations are also made regarding her treatment by Ms Lin Ko, also a director of Sunrise Seafood, in April 2008 and by Sunrise Seafood following the actions of Po Chieh Ko between May 2008 and 2 September 2008.
The legislative scheme
The tribunal must accept a complaint referred to it by the ADCQ, unless the complaint was made more than one year after the alleged contravention of the Act.[1] If the complaint was made more than a year after the alleged contravention, the tribunal may deal with it, if it considers on the balance of fairness as between the parties, it is reasonable to do so.[2]
[1] Anti-Discrimination Act 1991 section 175(1).
[2] Anti-Discrimination Act 1991 section 175(2).
The Act provides that a person must not sexually harass another person.[3] Sexual harassment is defined by the Act as follows:
119 Meaning of sexual harassment
Sexual harassment happens if a person--
(a) subjects another person to an unsolicited act of physical intimacy; or
(b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or
(c) makes a remark with sexual connotations relating to the other person; or(d) engages in any other unwelcome conduct of a sexual nature in relation to the other person;[3] Anti-Discrimination Act 1991 section 118.
and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so--
(e) with the intention of offending, humiliating or intimidating the other person; or
(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
Examples of subsection (1)(a)--
physical contact such as patting, pinching or touching in a sexual way
unnecessary familiarity such as deliberately brushing against a person
Example of subsection (1)(b)--
sexual propositions
Examples of subsection (1)(c)--
unwelcome and uncalled for remarks or insinuations about a person's sex or private life
suggestive comments about a person's appearance or body
Examples of subsection (1)(d)--
offensive telephone calls
indecent exposureSection 120 of the Act prescribes circumstances that are relevant in determining whether a reasonable person would anticipate the possibility that the other person would be offended, humiliated or intimidated by the conduct. These circumstances include the sex,[4] age,[5] race,[6] and any impairment[7] of the other person, together with the relationship between the other person and the person engaging in the conduct.[8] The circumstances also include ‘any other circumstances of the person’.[9]
[4] Anti-Discrimination Act 1991 section 120(a).
[5] Anti-Discrimination Act 1991 section 120(b).
[6] Anti-Discrimination Act 1991 section 120(c).
[7] Anti-Discrimination Act 1991 section 120(d).
[8] Anti-Discrimination Act 1991 section 120(e).
[9] Anti-Discrimination Act 1991 section 120(f).
Section 129 of the Act provides that a person must not victimise another person. Section 130 defines victimisation as follows:
130 Meaning of victimisation
(1) Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)--
(a) because the complainant, or a person associated with, or related to, the complainant--
(i) refused to do an act that would amount to a contravention of the Act; or
(ii) in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
(iii) is, has been, or intends to be, involved in a proceeding under the Act against any person; or
(b) because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).(2) In this section, a reference to involvement in a proceeding under the Act includes--
(a) making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
(b) involvement in a prosecution for an offence against the Act; and
(c) supplying information and producing documents to a person who is performing a function under the Act; and
(d) appearing as a witness in a proceeding under the Act.
Section 7 of the Act prohibits discrimination on the basis of attributes, including the attribute of sex.[10] Section 8 defines the meaning of discrimination on the basis of an attribute to include direct[11] and indirect[12] discrimination on the basis of a characteristic that a person with the attribute generally has,[13] or is often imputed with having.[14]
[10] Anti-Discrimination Act 1991 section 7(a).
[11] Anti-Discrimination Act 1991 section 10.
[12] Anti-Discrimination Act 1991 section 11.
[13] Anti-Discrimination Act 1991 section 8(a).
[14] Anti-Discrimination Act 1991 section 8(b).
Under section 15, discrimination in the area of work is prohibited, including by variation of the terms of work;[15] denying or limiting access to opportunities for promotion or other benefits;[16] dismissing a worker;[17] or treating a worker unfavourably in any way in connection with work.[18]
[15] Anti-Discrimination Act 1991 section 15(1)(a).
[16] Anti-Discrimination Act 1991 section 15(1)(b)
[17] Anti-Discrimination Act 1991 section 15(1)(c).
[18] Anti-Discrimination Act 1991 section 15(1)(f)
10.Generally the complainant has the burden of proving, on the balance of probabilities, that the respondent contravened the Act.[19] The exceptions to this general rule are not applicable in the circumstances of this proceeding. The applicable standard of proof is the balance of probabilities, having regard to the factors set out in Briginshaw v Briginshaw.[20] This is a variable standard, which requires that regard be had to the consequences which flow in the event of an adverse finding.
[19] Anti-Discrimination Act 1991 section 204.
[20] [1938] HCA 34.
The complaint and the allegations
11.The applicant’s complaints are set out in her complaint attached to the referral from ADCQ[21] and sometimes in other correspondence and documents provided by her to ADCQ which accompany the referral; in a letter to QCAT[22] and an affidavit.[23] She also gave oral evidence at the hearing.
[21] Exhibit 1.
[22] Exhibit 2.
[23] Exhibit 3.
12.The occurrences relied upon essentially involve events on four days; namely, 28 May 2008; 29 May 2008; 1 September 2008 and 2 September 2008; and some alleged changes in the attitude of the second respondent towards the complainant between the May events and the September events, and some alleged changes to her employment pattern during that period. There are also some allegations that she was struck by Lin Ko in April 2008. Two other allegations were made in January 2010. These were subsequently withdrawn but were the subject of cross-examination at the hearing. The applicant said they were withdrawn because if she proceeded with them, the complaint had to go through the ADCQ conferencing process again, indicating that she considered that this would take too long.
13.It is not controversial that Sunrise Seafood operates from premises on which there are also at least two houses in which the directors of the business live. The business is primarily a prawn farm. Mr Po Chieh Ko, his brother, Mr Ting Ko and Ms Lin Ko, their mother are directors of Sunrise Seafood. Po Chieh Ko and Lin Ko share one house on the premises.
14.Regarding her employment status, Ms Maszlik denied that she was employed on a casual basis, stating that she worked full-time from 2007, indicating that she would not have bought her house if it was a part-time job. She said that she had worked every day since 2007, and ‘out of season’ worked ‘in the ponds.’ She did accept that it was seasonal work and that out of season, she worked shorter hours. She also said that she did not work if it was raining and for some other reasons.
15.The respondents alleged that she was a casual worker. Ms Maszlik tendered correspondence dated 20 October 2007 from Sunrise Seafood confirming that she had been employed since May 2006 on a casual basis and was at the time a permanent casual employee, averaging 40 hours per week, although indicating that in the previous financial year, four months was the off season for the farm and a non-working period. Pay records provided by Sunrise Seafood also confirm variable hours and pay throughout her employment with Sunrise Seafood.
April 2008
16.The complainant alleges that she was washing drains in April 2008 when she was struck by Ms Lin Ko, who ‘started swiping’ at her arm, hitting her six times or more on her left arm. She says that Ting Ko came over and told her to stop. At the hearing, she said that this was the second time Ms Ko had hit her, but she was unable to recall when it had earlier occurred. She said that she had never before indicated that this had happened on two occasions because she could not recall when the first occasion was. She said that Mrs Ko had not hurt her, but did strike her. At hearing she said she was struck 10-12 times.
28 May 2008
17.Ms Maszlik’s complaint to the ADCQ was that it had been raining the previous night and as it was very wet that day, it was not possible for her to do her normal duties essentially in a labouring role. She states that Po Chieh Ko asked her to clean his kitchen because his mother had not had time to do it. She says she had been asked to clean occasionally in the past when Lin Ko was away.
18.She was content to do this, rather than earn no money that day. While she was cleaning, her complaint alleges that the second respondent showed her an ‘explicit uncut sex scene’ on a video. She said that initially ‘Eric’ called her in to look at a young girl on the video whom he thought was beautiful. Then she says, he called her back into the room ‘a bit later to watch an explicit uncut sex scene’. She says that she was not impressed and went back to the kitchen to continue working.
19.In her letter to the tribunal and her affidavit she refers to the being shown an explicit sex scene, and in the affidavit adds that it was on television. At the hearing she described being asked to look at a CD, stating that it definitely was not a video, on television. She says it was in a foreign language which Eric told her was Japanese. She said that she watched it with him for a while and it was a love story, and then without warning, there were offensive images shown. These offensive images consisted of a woman in the film being pushed face down onto a bed, while a man in the film ‘did things’ to her from behind. She saw no sexual acts performed and the actors were not naked. She said that as soon as she saw this happen, she walked out, ‘laughed’ and went back to the kitchen.
20.In her complaint to ADCQ she says that Mr Po Chieh Ko continued to watch it and that she had to continue to listen to it while she worked. She says that she told him that this was not appropriate and that he then took it off. In other documentation provided to ADCQ she indicates that she told him immediately that it was not suitable to watch and then went back to cleaning. Her letter and affidavit do not mention this. Her oral evidence seemed to be that ‘Eric’ took this film off when she left and he asked her to come back and look at something else. She did so, she said because it was her job. The images she saw when she returned were of a person with clips and chains in their skin, and did not involve nudity.
21.In her complaint, she says that because it was so wet, she suggested to Po Chieh Ko that she go shopping the following day. She says that she made an arrangement with him, that she would purchase some tobacco for him. He was to collect it from her the next day. She said that she had previously purchased tobacco for him on one occasion and he had collected it from her. At the hearing she explained that he gave her $50 to buy tobacco, filters and papers.
29 May 2008
22.She says that she telephoned Po Chieh Ko and he called over to her home to collect his tobacco. In her complaint, she says that they had a cup of coffee and he spoke to her about not being able to continue doing the work forever because of her age, and she asked if she could have a ladder to get access to the tanks. She alleges that ‘just as he was leaving he tried to kiss me’ and ‘I did not want this and pushed him away very gentle (sic)’ saying that she was not ready to get involved with anyone as she had only separated from her husband in February. She says that he asked ‘what about me’ and that he was apologetic, saying sorry on about 6 occasions.
23.In the letter provided to the tribunal she says that Po Chieh Ko tried to kiss her and when she refused he shouted at her ‘what about me’. Her affidavit states that he attempted to kiss her, and when she said no, he became indignant.
24.In cross-examination, when asked to describe what had occurred when Po Chieh Ko attempted to kiss her, Ms Maszlik said that he had moved towards her and she threw her hands up and he stopped. She was unable to say whether he had actually touched her at all. She said that he said ‘what about me’. She did not know what he did with his hands. It seems that she says she went ‘up the hall’ and he said sorry, about 15 times.
The Intervening Period
25.In her complaint, Ms Maszlik says that she did not see Po Chieh Ko again for 6 weeks and that she was not allowed to return to work until he left for Taiwan. She says that she visited the doctor ‘whilst being ill because I believed that I was going to be sacked.’ In other documentation provided to ADCQ she states that it rained again overnight on 29 May 2008, and so she knew that she would not be going to work and that when she phoned Sunrise Seafood a couple of days later, she was told that they would contact her about when to return to work. She claims that she was only allowed to go back because Eric had gone to Taiwan for a month.
26.She says in the complaint that when he returned, everything was alright for a while and that he was talking about the girls he met. She thought he ‘had got over me’. Then she says he started again, but in a different way, being more blunt and abrasive towards her and swearing at her. Also, she says he asked if she was wearing underwear; made as if to hit her on the bottom; and accused her of doing things she had not done.
27.In her letter provided to the tribunal she says that ‘before Eric left’ he told me not to go to work because it was so wet, and she was not allowed to return to work for 2 weeks, and by then he had left for Taiwan for a month. In the letter she says that he was strange towards her when he returned, and ‘would pick on’ her ‘over everything’. Her affidavit does not refer to these events.
28.In oral evidence, she confirmed that she had about 2 weeks off work from 29 May 2008 and that Po Chieh Ko went away for a month. She said that she received $1,000, being $500 which Po Chieh Ko had suggested to Ting Ko that she be paid as a bonus and also received money equivalent to her wages for the 2 weeks, of another $500. She acknowledged that she had also received a bonus at the end of the previous season. She said that when Po Chieh Ko returned from Taiwan he was very abrupt towards her. She said that he talked about ‘all these women he had met’ and showed her pictures on his computer for example of ‘Russian girls in underwear.’
29.Also, she gave oral evidence that she spoke with a friend, Kathy Messenger about what had happened and she told her that she would be sacked and that she should go to the doctor straight away.
1 September 2008
30.In her complaint, she says that on 1 September 2008, Po Chieh Ko was taking photographs of the tanks, and that when he got to the one she was working on, he said he ‘could take a photo of your bum from here’ and she replied ‘I wouldn’t if I was you.’ She says that she had an accident on that day because he insisted that she get into a wet tank, and that she had been in pain since and unable to work.
31.In the letter provided to the tribunal, she talks about ‘Cookie,’ a person who did contract work for Sunrise Seafood saying ‘No Miranda I won’t have sex with you. I only have sex with my wife’ to play a joke on Eric. She states that she turned to see ‘Eric’ standing behind her, glaring at her. Then she says three days later on 1 September 2008, ‘Eric’ insisted that she enter a tank which was wet and dangerous. She alleges that she said 3 times that it was too wet and any other time he would have insisted that she not enter the tank. When she entered it, she says that she fell heavily. After lunch she says she resumed her duties and he came over to take a photo of the tanks and said he could take a photo of her bum from there. She responded, ‘I wouldn’t if I was you.’
32.In her affidavit, she says that Eric ‘verbally made’ me get into a wet tank knowing it was wet after she had told him 3 times. She says he witnessed her fall and walked away leaving her laying in the tank.
33.In cross-examination she said that Eric had threatened to take photographs of her ‘bum’ on that day, and that Eric was present when she fell and saw it occur.
2 September 2008
34.Her complaint does not mention the events of this day. Her letter to the tribunal says that the next day she arrived 10 minutes late for work and that ‘Eric’ was angry and was walking up and down. She states that she has always made up her time, it seems, this means if she is late for work. She claims that he wanted an argument and when she spoke about the previous day and the accident, ‘and that all he could think off (sic) was to ask (would I like a massage) His answer was that’s your job and that’s what you get paid for and if you don’t like it you know where the door is’.[24] In correspondence from the applicant to the ADCQ dated 5 June 2009, which was provided with the referral[25] the complainant states that on 1 September after the fall, she was ‘circling her arm in the air’ as she passed ‘Eric’ and he asked if she would like a massage.
[24] Exhibit 2, page 2.
[25] Exhibit 1.
35.Her affidavit refers to arriving at ‘6.10’ for work and that ‘he was pacing up and down, ‘saying what time do you call this’. She says that she said that she always made up her time and mentioned the accident the day before. Again, she refers to Po Chieh Ko stating that was her job and that’s what she was paid for and if she did not like it she knew ‘where the door is’.
36.In cross-examination, she said that she was 10 minutes late and had forgotten her gumboots and had to go and get some. She said that she was going slow, but that she worked for some hours, but left and went home. She says that she was not told to leave but that she had had enough and she left.
37.The complainant did not return to work for Sunrise Seafood again.
The Withdrawn Complaints
38.On 11 January 2010, the applicant wrote to ADCQ advising of two more incidents. This correspondence accompanied the referral[26] to the tribunal. These complaints were that Ting Ko and Po Chieh Ko urinated directly outside the tank in which she worked and that Po Chieh Ko brushed her breasts with his hands when lifting her out of the tank and refused her request for a ladder. These allegations were subsequently withdrawn.
[26] Exhibit 1.
39.In cross-examination she stated that she did not see their genitals when urinating and that they did this in front of everyone. Also, she said that she did not think Po Chieh Ko meant to brush against her breasts.
The Applicant’s Supporting Witnesses
40.None of the witnesses saw any of the events complained of. They each gave evidence of Ms Maszlik having told them of some of the events complained of and that she was distressed by this. For example, she told Gary Maszlik, her former husband, that Po Chieh Ko had showed her an explicit sex film and attempted to kiss her.
The respondents’ evidence
41.Lin Ko denied ever having struck the applicant or having worked alongside her. She says that she is 74 years old and is a managing director, but has not physically worked in the business. She returned to the farm from Brisbane on 25 May 2008 and was home all day on 28 May 2008. She denies that Ms Maszlik came to her home.
42.Po Chieh Ko denies that the complainant came to his home on 28 May 2008, stating that the only time she had come to the house to clean was on an occasion before his mother lived there. He says he worked on the farm all day on 28 May 2008. Although he could not recall if it rained, he recalled the day because it was the day before a very long planning meeting and discussion about a new hatchery held on 29 May 2008, which he attended with Ting Ko, his mother and Christopher Cook.
43.He specifically denies the allegations made by the applicant that he showed her an explicit sex scene, denying that he had a video or DVD recorder attached to his television. He denies ever having gone to the complainant’s house and states that he had given up cigarettes in April 2008 and has not smoked since. He denies attempting to kiss her, swearing at her, asking her inappropriate questions, and attempting to take photographs of her bottom. He denies ever having touched her or lifting her out of the tank, stating that this would be impossible. He denies treating her differently or badly as alleged. He says he did not witness her fall on 1 September, becoming aware of it only when the company was contacted by WorkCover about a claim she had made. He says that on 2 September she refused to wear the gum boots provided and seemed to want to pick a fight and leave the farm that day.
44.Christopher Cook, a contractor working for Sunrise Seafood over some 10 years, states that he set up the televisions at Po Chieh Ko’s and Ting Ko’s houses. He states that there has never been a video or DVD attached to the televisions. In cross-examination he denied that a DVD could have been taken from the casual workers area, because it required a particular type of connector which Eric’s house did not have. His records show that he worked at the farm on 28 and 29 May 2008. He recalled a long planning meeting on 29 May 2008 about a new hatchery which was attended by ‘Eric’, Ting, Lin and himself. His records show that he worked 9 hours for the first respondent on that day. He does not recall any changes in the interactions between ‘Eric’ and Ms Maszlik between May 2008 until she ceased working for Sunrise Seafood.
45.Ting Ko produced the rainfall records kept for 28 May 2008, showing 2.2m of rain only, and records showing other employees were working on that day. He confirmed the casual nature of Ms Maszlik’s employment and denied that any lack of work from 29 May 2008 had anything to do with his brother. He did not witness any incidents as alleged by the complainant and observed no change in the relationship between his brother and Ms Maszlik after May 2008 until she left Sunrise Seafood.
46.Essentially, it is argued by the respondents that on the basis of the applicant’s uncorroborated evidence the tribunal could not be satisfied that the events alleged had occurred; but that even if the tribunal accepted that they had occurred the Act had not been contravened.
Discussion
47.The tribunal must accept a complaint unless it is made more than one year after the alleged contravention of the Act. The complaint was made to ADCQ on 29 May 2009. Allegations about occurrences on or after 30 May 2008, were therefore made in time.
48.The allegations include that Lin Ko struck the applicant in April 2008. The applicant also alleges that Po Chieh Ko showed her an explicit uncut sex scene on 28 May 2008, and tried to kiss her on 29 May 2008. It seems that these are the out of time allegations that were accepted by the ADCQ. The tribunal may deal with the alleged contravention which is made outside of the time limit if on the balance of fairness between the parties, it is reasonable to do so.
49.Both parties expected the allegations made out of time to be dealt with and provided evidence in relation to them. On the balance of fairness, I consider it is reasonable to deal with them in the circumstances.
50.In relation to the allegations that Lin Ko struck the applicant, the evidence of the applicant is brief. At its highest, the allegation as articulated by the applicant seems to be that Lin Ko, who was working alongside her at the time, ‘swiped’ at her arm, hitting her six times or more. Lin Ko denies that this occurred, and states that she has not physically worked in the business. She is 74 years of age.
51.Whereas the actions alleged, if they occurred would be undesirable and potentially destructive in a work place, and may potentially lead to criminal charges, it is difficult to envisage that they would constitute a contravention of the Act.
52.Despite what the applicant says about working every day from 2007, it is apparent from the documentary evidence available, as tendered by her, and as attached to the affidavit of Ting Ko that she was employed as a casual worker and that her hours of work varied considerably and sometimes she did not work.
53.The applicant’s statements about what occurred on 28 May 2008; 29 May 2008; and on 1 September 2008 and 2 September 2008 and in the intervening period between the May and September allegations, vary in each account that she has given to the ADCQ and the tribunal.
54.The events of the 28 May are differently described in relation to some aspects, in particular, as to whether she told Po Chieh Ko it was not appropriate to view the film immediately, or whether she returned to the kitchen and had to continue to listen to it while she worked and later told him it was not appropriate. She describes variously being shown an ‘explicit uncut sex scene on a video, and in a later account, on a CD presumably a DVD, definitely not a video. However, when pressed to describe the actual film viewed, she said it was a love story, and that without warning, a violent sex act occurred, although there was no nudity or sexual activity shown. In effect, it seems a woman was forced down onto a bed, and it was left for the viewer to imagine what was done by a man behind her. In my view, the description attributed by the applicant of ‘explicit uncut sex scene’ is not an accurate description of what it is alleged was viewed, as unpleasant as what she described may be, in that it may infer non-consensual sexual activity.
55.Of course, the respondents’ evidence is that it was not a wet day as the applicant alleges. Po Chieh Ko says that the event did not occur and that he did not at any stage have a video or DVD player. Christopher Cook confirms this.
56.Again, the applicant’s descriptions of the events of 29 May 2008 which she says occurred when she alleges Po Chieh Ko tried to kiss her as he left her house vary on each occasion that she recounts the events. Further, when pressed at hearing, put at its highest, she says he moved towards her, but it seems did not touch her, whereupon she threw her arms in the air and he said ‘what about me’. In some versions of the events he became indignant about her refusal and in others it seems extremely apologetic. On the basis of the evidence presented, despite the numerous occasions on which the applicant has recounted the events, it is not apparent to me in any of the available versions why she thought he was trying to kiss her. When pressed at hearing, the most she offered was that he moved towards her. The descriptions given do not suggest that there was an attempted kiss.
57.Once again, Po Chieh Ko denies that the events happened, explaining that he had given up smoking and had no reason to ask Ms Maszlik to get tobacco for him. Also, as confirmed by Christopher Cook and Ting Ko, and supported by documentary evidence of Christopher Cook’s hours worked on that day, a long planning meeting about a new hatchery was held that day and it was attended by Po Chieh Ko.
58.The applicant’s explanations about why she did not work for the next 2 weeks are equally confused. In some version, she says that Eric told her not to come to work because it was so wet. On another occasion she said that she was not allowed to return until Eric left for Taiwan, which seems to infer that it was because of Eric and his reaction to her. In another version, she suggests that because it rained overnight on 29 May 2008 that she knew she would not be going to work, and when she rang Sunrise Seafood several days later, she was told they would be in contact about when to return to work. This version confirms the casual nature of the employment which she seeks to deny, and goes against an allegation that her employment patterns changed in some way as a result of her rejection of Po Chieh Ko’s advances.
59.At the hearing, she confirmed that she received a bonus shortly after Po Chieh Ko left for Taiwan, which she seems to attribute to Po Chieh Ko. This is also incongruent with him treating her badly because of an alleged rejection of his advances towards her. Some versions of the allegations suggest that immediately upon Po Chieh Ko’s return he was abrupt and different towards her; whereas other versions suggest that everything was fine initially but deteriorated. The different versions infer that there were various events leading up to her fall on 1 September, which she says Po Chieh Ko witnessed, and led to her leaving Sunrise Seafood on 2 September 2008 and not returning.
60.The withdrawn complaints also raise some concerns. Given that sexual inappropriateness of some type is the underlying basis of the allegations, it is remarkable that the allegation that Po Chieh Ko touched the applicant on the breasts, did not form a part of the original complaint.
61.In respect of every allegation made by the applicant, the respondents have adduced evidence to counter the allegations made, in some cases supported by documentary evidence.
62.The inconsistency in the versions of events presented by the applicant raises concerns about the reliability of her evidence. The evidence of the events given at hearing of the alleged ‘explicit uncut sex scene’ and the attempted kiss do not match those descriptions. There was no nudity or sexual act witnessed on any film, taking the applicant’s allegations at their highest. The applicant’s evidence describing the attempted kiss does not suggest an attempted kiss occurred. On the basis of the description given it is difficult to understand why she thought that Po Chieh Ko was trying to kiss her, even if her evidence was accepted.
63.Regarding the period between 29 May 2008 and 1 September 2008, some competing versions of events alleged by the applicant suggest that the change in attitude was immediate and some suggest it occurred after a period which proceeded without incident but the situation deteriorated. The evidence of the applicant about why she did not work for a period after 29 May 2008 is equally confused. Some versions suggest that she knew she would not be working immediately afterwards because it rained. Other versions infer that Po Chieh Ko was in some way responsible for her not being offered work for a period, which seems at odds with her evidence that it was him who suggested she receive a bonus at this time.
64.There is some documentary evidence available which contradicts some of Ms Maszlik’s assertions. In particular, the payroll records contradict her assertions about the regularity of her employment, as does some of her own evidence about knowing she would not be working on 30 May 2008 because it was raining and preferring to clean Po Chieh Ko’s house than go home and not be paid. Further, the rainfall records for 28 May 2008 are at odds with the applicant’s evidence.
65.Having regard to the applicable standard, the applicant has not established to my reasonable satisfaction that the events she alleges occurred. It follows that the applicant has not established a breach of the Act. I dismiss the complaint.
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