Meshram v Bing Lee Electrics Pty Ltd (No 2)
[2023] FedCFamC2G 784
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Meshram v Bing Lee Electrics Pty Ltd (No 2) [2023] FedCFamC2G 784
File number(s): SYG 2309 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 31 August 2023 Catchwords: HUMAN RIGHTS – Alleged racial discrimination – alleged sex discrimination – whether mention of Viagra constitutes conduct of a sexual nature
COSTS – Whether costs application foreclosed by reason of proceedings having been brought in human rights jurisdiction – public interest litigation
Legislation: Fair Work Act 2009 (Cth) s 570
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 197, 214
Federal Court Act 1976 (Cth) s 43
Racial Discrimination Act 1975 (Cth) ss 9, 18C, 15, 27
Sex Discrimination Act1984 (Cth) ss 5, 14, 28A, 28B, 94, 106
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Fetherson v Peninsula Health (No 2) (2004) 137 FCR 262
Hughes t/as Beesley and Hughes Lawyers v Hill (2020) 277 FCR 511
Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381
Meshram v Bing Lee Electrics Pty Ltd [2022] FedCFamC2G 718NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Sidhu v Raptis [2012] FMCA 338
Tadawan v State of South Australia [2001] FMCA 25
Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403
Division: Division 2 General Federal Law Number of paragraphs: 346 Date of hearing: 13 to 16 and 20 to 21 March 2023 Place: Sydney Solicitor for the Applicant: In person Counsel for the Respondents: Mr B Rauf Solicitor for the Respondents: Coleman Greig Lawyers ORDERS
SYG 2309 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AISHWARYA MESHRAM
Applicant
AND: BING LEE ELECTRICS PTY LTD
First Respondent
BIANCA NURSOO
Second Respondent
RAMZI YOUSIF (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
31 AUGUST 2023
THE COURT ORDERS THAT:
1.The Further Amended Application filed with the Court on 28 September 2022, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[2]
PROCEEDINGS IN THIS COURT
[9]
Causes of action
[12]
Burden of proof
[15]
Legislation
[19]
HEARING
[26]
Events leading to hearing
[27]
Final hearing
[31]
EVIDENCE
[43]
Ms Meshram’s notes
[49]
Credit
[58]
Evidence of Sean Ng
[65]
CONTEXTUAL BACKGROUND TO CLAIMS
[72]
Commencement of Ms Meshram’s employment with Bing Lee
[73]
Induction and policies
[77]
Composition of the OG store workforce
[89]
Sharking
[93]
Timing of the alleged incidents
[98]
Ms Meshram’s departure and subsequent resignation from Bing Lee
[101]
5 December 2018 – staff meeting
[101]
7 December 2018 – the telephone recording incident
[108]
8 December 2018 – Ms Meshram no longer attends work
[112]
Resignation
[115]
ALLEGATIONS AGAINST THE FOURTH RESPONDENT
[119]
First Iacono allegation
[122]
Second Iacono allegation
[134]
ALLEGATIONS AGAINST THE FIFTH RESPONDENT
[143]
First Cortes allegation
[146]
Second Cortes allegation
[156]
Third Cortes allegation
[164]
Complaints allegedly made about the Cortes allegation
[177]
ALLEGATIONS AGAINST THE SIXTH RESPONDENT
[182]
ALLEGATIONS AGAINST THE SEVENTH RESPONDENT
[214]
Complaints allegedly made about the Trang allegation
[228]
ALLEGATIONS AGAINST THE EIGHTH RESPONDENT
[236]
ALLEGATIONS AGAINST THE ELEVENTH RESPONDENT
[263]
Complaints allegedly made about the Prendergast allegation
[279]
ALLEGATIONS AGAINST BING LEE
[286]
Racial discrimination
[289]
Alleged failure to take reasonable steps
[289]
Alleged failure to Act
[298]
Allegation that AHRC complaint presaged
[311]
Conclusion
[314]
Sex Discrimination
[316]
Alleged failure to take reasonable steps
[316]
Alleged failure to Act
[320]
Allegation that AHRC complaint presaged
[326]
Conclusion
[327]
PUBLIC INTEREST LITIGATION
[328]
Legislation
[332]
Consideration
[334]
CONCLUSION
[345]
JUDGE GIVEN:
This case is regrettable, and highlights the perils of litigating hurt feelings.
INTRODUCTION
In 2020, Ms Aishwarya Meshram (Ms Meshram) commenced these proceedings in the Federal Court of Australia. Ultimately, following the transfer of the proceedings to this Court, and various interlocutory applications, the claims which remained made allegations of racial and or/sex discrimination against six individual respondents, together with vicarious liability claims against the corporate respondent, Bing Lee Electrics Pty Ltd (Bing Lee), who is Ms Meshram’s former employer. From 22 January 2018, until her resignation on 25 February 2019, Ms Meshram was employed by Bing Lee as a sales consultant, initially at its Bankstown store and later at its store located in Old Guildford (OG store). In her role, Ms Meshram was required to work selling consumer goods (specifically white goods and cooking appliances) to members of the public. Ms Meshram seeks apologies and monetary relief (in varying amounts) for the alleged conduct of Bing Lee and the remaining[1] individual respondents.
[1] See [9] and [10] below
Ms Meshram appears to feel very strongly about her claims. While these reasons for judgment are not intended to cause Ms Meshram discomfort, the Court must make findings in relation to the matters she alleges (including as to the truth of them). The events which formed the subject of Ms Meshram’s claims did generally have some factually accurate genesis (even if only a scintilla). However, Ms Meshram has built upon those events, which stem predominantly from unremarkable, collegiate “small talk”, and petty workplace disagreements to cast them in a more nefarious light. The Court has concluded that the vehement adherence Ms Meshram has to the narrative she advances is not demonstrative of a steadfast recollection of the events always truly held by her. Rather, she has become a disciple to her account over time. The events giving rise to the allegations are viewed by Ms Meshram through a prism which, at a minimum, construes interactions as always involving an insult of some kind, and in some instances could only be the result of fabrication by her, so long is the bow drawn.
While employed by Bing Lee, Ms Meshram came to understand that she was not especially popular or well-liked[2] among the colleagues who worked directly with her in the OG store.[3] So incredulous was she at the prospect that this might be because of her personality or conduct alone, she constructed a narrative which explained the dislike as being because she is Indian and/or a woman. Ms Meshram ultimately sought to construe events in a manner which might give rise to certain causes of action. As will be explained below, none of those claims is made out.
[2] Ng Affidavit at [49]
[3] Cf evidence of Mr Ng [69] below
The inability of Ms Meshram to acknowledge any personal responsibility is a theme which emerged not only from the events the subject of the allegations in these proceedings, but also the litigation itself. At regular junctures, Ms Meshram protested that the proceedings were distressing to her, yet persisted in prosecuting them while resisting the matter being set down for hearing. The Court sought to be impress upon Ms Meshram when appropriate that, while accepting she may have been distressed by this litigation, the allegations she made against her former colleagues were serious and distressing for them also. By reason of their being respondents to the proceedings, those parties themselves were in the litigation against their will.
Having been brought and pursued in the Court’s human rights jurisdiction, contrary to Ms Meshram’s eventual submission, these proceedings are ones in which she has a costs exposure.[4] Ms Meshram refused to focus on the potential costs exposure until quite late in the hearing, despite it having been raised for her contemplation by this Court (and the Federal Court)[5] on a number of occasions. When the realisation finally appeared to resonate towards the end of the hearing, Ms Meshram said that the Court ought to have saved her from a potential adverse costs order by acceding to the respondents’ strike-out application in its entirety. This is despite the fact that Ms Meshram strenuously resisted that strike-out application.
[4] See [328] to [344] below
[5] Transcript 9 July 2020 at T3.3 to T3.26
It is hoped that at some stage Ms Meshram will reflect upon what she has contributed to her current plight.
For the reasons which follow, Ms Meshram’s application, as variously amended, must be dismissed.
PROCEEDINGS IN THIS COURT
As noted above, these proceedings had their origin in the Federal Court of Australia. Following the transfer of the proceedings to this Court, the respondents made an application for summary judgment/strikeout of an amended application (filed in the Federal Court on 3 August 2020 (Amended Application)), the result of which was the judgment delivered by this Court on 1 September 2022: see Meshram v Bing Lee Electrics Pty Ltd [2022] FedCFamC2G 718 (interlocutory judgment). Further salient background to the proceedings can be found in the interlocutory judgment at [5] to [11].
The outcome of the interlocutory judgment was that some parts of Ms Meshram’s Amended Application were summarily dismissed, with the consequence that each of the second, third, ninth and tenth respondents was removed from the proceedings. Limited leave was granted to Ms Meshram to re-plead only certain matters, with self-executing orders made for dismissal of the proceedings if that did not occur within the period prescribed. Ultimately, Ms Meshram filed a further amended application on 28 September 2022 (Further Amended Application), being the last day upon which the Court’s orders allowed. At the Court’s urging, so as to not unfairly stymy Ms Meshram’s ability to prosecute her case, costs applications in respect of the individual respondents who had been removed from the proceedings as a result of the interlocutory judgment were not made forthwith, and they remain to be made (and determined) at the conclusion of the proceedings.
At a subsequent interlocutory hearing on 14 October 2022, the Court acceded to a further strike-out application by the remaining respondents in respect of certain paragraphs of the Further Amended Application.
Causes of action
In its final iteration, the Further Amended Application can be summarised as follows:
(a)pursuant to s 18C of the Racial Discrimination Act 1975 (Cth) (RD Act), Ms Meshram makes allegations against each of the fourth, seventh, eighth and eleventh respondents;
(b)pursuant to s 28B of the Sex Discrimination Act1984 (Cth) (SD Act), Ms Meshram makes allegations against each of the fifth and sixth respondents; and
(c)Ms Meshram makes allegations against Bing Lee for vicarious liability in relation to the above alleged incidents (ss 18A and 18E RD Act, s 106 SD Act) and for an alleged failure to act (ss 9 and 15 RD Act, ss 5 and 14 SD Act).
The specific nature of the allegations as individually pleaded will be addressed below in relation to the respective respondents.
In terms of the relief sought, Ms Meshram says that by reason of her experiences at Bing Lee, she is entitled to an array of compensation, including for future economic loss. While ultimately abandoned before the Federal Court, the initial relief sought by Ms Meshram included termination of the employment of each of the individual respondents. In terms of her future economic loss, Ms Meshram[6] says that because of the alleged conduct of the respondents, she is unlikely and/or unable to work again. No evidence is presented to substantiate that contention.
[6] Who is currently 46 years of age
Burden of proof
The onus of establishing Ms Meshram’s claims is borne by her: see Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [38] per French J (as his Honour then was), Branson and Jacobson JJ. The relevant standard is the balance of probabilities: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362.
In Gama at [139] Branson J held that:
… The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved — and, I would add, the circumstances in which it is sought to be proved.
In the instant case, the allegations made by Ms Meshram are serious. This is a factor which has been applied to the Court’s assessment of the relative strength and necessary probative value of the evidence adduced.
Contrary to submissions made by Ms Meshram, the mere making of an allegation by her is not the same as having proved the elements of her claims on the balance of probabilities.
Legislation
By reference to the causes of action pleaded, the following legislation is relevant.
Section 18C of the RD Act, which is raised in respect of certain of the individual respondents, provides as follows:
18C Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
For the purposes of s 18C(3) of the RD Act, in the context of a retail setting whether conduct is done otherwise than in private will require a situational analysis of whether at the time in question the store was a place to which the public had access: see interlocutory judgment at [24] to [25] citing Sidhu v Raptis [2012] FMCA 338 per Smith FM.
Sections 9 and 15 of the RD Act, relevant to the allegations made against Bing Lee provide:
9 Racial discrimination to be unlawful
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4) The succeeding provisions of this Part do not limit the generality of this section.
15 Employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;
(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or
(c) to dismiss a second person from his or her employment;
by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.
(2) It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person.
(3) It is unlawful for an organization of employers or employees, or a person acting or purporting to act on behalf of such an organization, to prevent, or to seek to prevent, another person from offering for employment or from continuing in employment by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
(4) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(5) Nothing in this section renders unlawful an act in relation to employment, or an application for employment, in a dwelling‑house or flat occupied by the person who did the act or a person on whose behalf the act was done or by a relative of either of those persons.
Section 28B of the SD Act, which is raised in respect of certain of the individual respondents, provides as follows:
28B Employment, partnerships etc.
(1) It is unlawful for a person to sexually harass or harass on the ground of sex:
(a) an employee of the person; or
(b) a person who is seeking to become an employee of the person.
(2) It is unlawful for an employee to sexually harass, or harass on the ground of sex, a fellow employee or a person who is seeking employment with the same employer.
(3) It is unlawful for a person conducting a business or undertaking to sexually harass, or harass on the ground of sex:
(a) a worker in the business or undertaking; or
(b) a person who is seeking to become a worker in the business or undertaking.
(4) It is unlawful for a worker in a business or undertaking to sexually harass, or harass on the ground of sex:
(a) a fellow worker; or
(b) a person who is seeking to become a worker in the business or undertaking.
(5) It is unlawful for a person (the first person) who is:
(a) a worker; or
(b) a person conducting a business or undertaking;
to sexually harass, or harass on the ground of sex, a person if the harassment occurs in connection with the first person being:
(c) a worker; or
(d) a person conducting a business or undertaking.
(6) It is unlawful for a person to sexually harass, or harass on the ground of sex, a person (the second person) who is:
(a) a worker; or
(b) a person conducting a business or undertaking;
if the harassment occurs in connection with the second person being:
(c) a worker; or
(d) a person conducting a business or undertaking.
(7) It is unlawful for a person (the first person) who is:
(a) an employee; or
(b) an employer;
to sexually harass, or harass on the ground of sex, a person if the harassment occurs in connection with the first person being:
(c) an employee; or
(d) an employer.
(8) It is unlawful for a person to sexually harass, or harass on the ground of sex, a person (the second person) who is:
(a) an employee; or
(b) an employer;
if the harassment occurs in connection with the second person being:
(c) an employee; or
(d) an employer.
Sections 5 and 14 of the SD Act, relevant to the allegations made against Bing Lee provides:
5 Sex discrimination
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
14 Discrimination in employment or in superannuation
(1) It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a) in the arrangements made for the purpose of determining who should be offered employment;
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Nothing in paragraph (1)(a) or (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with employment to perform domestic duties on the premises on which the first‑mentioned person resides.
(4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex, sexual orientation or marital or relationship status of the member or that other person.
(5) Subsection (4) does not apply if section 41B applies to that member in respect of that fund.
(6) In this section:
member, in relation to a superannuation fund, includes a person who has been a member of the fund at any time.
Section 106 of the SD Act, relevant to the allegations made against Bing Lee provides:
106 Vicarious liability etc.
(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 Divison 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.
HEARING
Before embarking on an analysis of the evidence and available findings, it is necessary to document some aspects of the events leading to the hearing, and the hearing itself.
Events leading to hearing
Attempting to focus Ms Meshram on preparation of the matter for hearing proved challenging. Ms Meshram was reticent to participate in directions hearings, repeatedly sought adjournments at large, and was generally resistant to the proceedings being fixed for a final hearing.
By reason of Ms Meshram being unrepresented[7] the Court burdened the respondents (as has been another pattern in this case both in the Federal Court and this Court) with tasks aimed at ensuring the timely and smooth preparation of the matter, including the compilation of Court Books.
[7] Ms Meshram was unrepresented except for two periods: 20 November 2020 to 23 March 2021 (in the Federal Court) and 27 September 2022 to 5 October 2022 (in this Court)
In the week immediately preceding the final hearing of the matter (which was due to commence on Monday, 13 March 2023 with an estimate of five days) Ms Meshram was corresponding with the Court Registry about the availability of Court documents filed in the Federal Court proceedings, during which she made no mention of any health problems. Then, at 2:31pm on Saturday, 11 March 2023, Ms Meshram emailed the Registry with a medical certificate, apparently issued on Friday, 10 March 2023, which said:
THIS IS TO CERTIFY THAT
Ms Aishwarya Meshram
Attended this centre on 10/3/2023
In my opinion she is/was suffering from chest infection
She was/is unfit to continue her usual occupation/School/University/court
Friday, 10 March 2023 TO Friday, 17 March 2023 INCLUSIVE
This Certificate was completed on 10/3/2023
By the 11 March 2023 email Ms Meshram did not seek an adjournment, but rather “advice” as to what she should do. At 8:30am on the first day of hearing, Ms Meshram wrote to my Associate, without copying the respondents’ representatives, and sought an adjournment on the basis that she was suffering from a chest infection and a sore throat.[8] The parties were informed by an email sent by my Associate at the Court’s direction, that the hearing remained listed, and that any adjournment application should be made in person.
[8] Email from Ms Meshram to the Court dated 13 March 2023 at 8:30am
Final hearing
At 10:15am on 13 March 2023, the hearing commenced as listed, Ms Meshram was not present in the Court room but had since emailed the Court to say that she would attend and was running late. The matter was stood down to 10:45am to enable Ms Meshram to attend, which she did together with her husband, whom I allowed to sit at the Bar table throughout the entirety of the hearing, to support her.
Upon the recommencement of the hearing, Ms Meshram repeated her application for an adjournment.
The adjournment application was opposed by the respondents, and their Counsel submitted that if the adjournment were granted the respondents would likely seek that the proceedings be dismissed for default, constituted by the failure of Ms Meshram to diligently prosecute the proceedings.
Upon review, the medical certificate referred to at [29] above suffered from similar maladies as that which confronted the Court in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [6] to [11] per Lindgren J. The certificate was unclear as to whether Ms Meshram had been, or presently was, suffering from a chest infection. Ms Meshram did not refer to the illness in her correspondence to the Court on 10 March 2023, notwithstanding she had either been to, or was contemplating attending a medical practice. Further, Ms Meshram waited until lunchtime on the Saturday immediately preceding the hearing to provide the medical certificate to the Court Registry (not to my Chambers) and the respondents’ solicitor. The timing of the medical certificate (both its procurement and provision) suggested that at a certain point on 10 March 2023, Ms Meshram determined that she did not wish to attend the hearing and obtained a medical certificate to that effect. While the Court was prepared to take the certificate on face value as to the nature of the condition, absent a more detailed explanation from the doctor, there was nothing before the Court to indicate that Ms Meshram was prevented from attending, or participating meaningfully in, the hearing. While Ms Meshram’s correspondence to the Court on the first morning of the hearing expressed her own opinion that she was not well enough to attend or participate, Ms Meshram had a vested interest in the matter adjourning, and her self-reported conclusions were given little weight. There was nothing preventing the medical practitioner from offering such an opinion and yet, they did not. Other than frequent coughing, which mostly occurred when others were speaking, Ms Meshram did not appear to be unable to participate in the hearing.
The Court refused the adjournment application on the aforementioned bases.
Upon commencement of her opening submissions, Ms Meshram seemingly ceased to be affected by her cough, was at times feisty in her demeanour and made submissions at a volume which did not bear out the apparent sore throat from which she had earlier claimed to be suffering.[9] On the first day of hearing, it was generally only when the Court or Counsel for the respondents was speaking that Ms Meshram seemed to be affected by her cough. By the second day of hearing, Ms Meshram had ceased coughing in Court at all. No further adjournment application was made by Ms Meshram for the remainder of the hearing. Overall, Ms Meshram did not seem unable to participate in the hearing in a meaningful way, which despite being listed for 5 days, ultimately took 6 days.
[9] See [30] above
Aside from the adjournment request already addressed above, other practical aspects of the hearing also warrant recording for any future purposes, to give context to matters which are recorded by the transcript. There were a number of ways in which the hearing was delayed by Ms Meshram, leaving aside her late arrival on the first day of hearing and the time taken on that day to deal with her adjournment application. Firstly, at any starting time, including after adjournments or even short breaks, Ms Meshram was not in Court and was late to come to the Bar table. While a short delay is not a matter of moment in a single instance, given the number of breaks which occur in a regular hearing day, and across 6 days of hearing, the delays accumulated to waste considerable hearing time.
In relation to how Ms Meshram conducted herself while being cross-examined, this has been addressed at [58] to [64] below in relation to various aspects of the evidence. On the second day of her cross-examination, Ms Meshram commenced a practice of constant writing, which led to her being distracted and less focussed on the questions while attempting (it seemed) to keep a record of what she was being asked, rather than attending to answering the questions. Eventually this practice became so deleterious to the questioning process that the Court requested that Ms Meshram stop writing so as to focus on Counsel’s questions and her answers to them.
It can be readily accepted that cross-examination is an onerous task even for an experienced lawyer. For a lay person, it can be additionally challenging. However, difficulties with Ms Meshram’s cross-examination of witnesses were further compounded in terms of time-wastage because of lengthy pauses between questions (sometimes for minutes) during which she often wrote extensively. This was despite the fact that Ms Meshram’s husband (to whom I had granted leave to sit at the Bar table as a support person) took notes consistently throughout the hearing, presumably of what was being said (including during Ms Meshram’s cross-examination (see [38] above)), and despite the additional option of obtaining an official transcript.
Ms Meshram also engaged in a practice of interspersing the cross-examination of witnesses with dramatic pauses after answers were given. If receiving an answer (which she presumably considered to be) of note, Ms Meshram would stop and turn expectantly to the Bench, seemingly for effect, so as to emphasise the magnitude of the answer just given.
Ms Meshram’s cross-examination of witnesses included squabbling with them by immediately proffering her own evidence from the Bar table, to counter answers with which she appeared displeased. Ms Meshram would also linger on irrelevant incidents of workplace discontent while questioning the witnesses which, despite Ms Meshram’s feelings about the events, were not the subject of any cause of action before the Court.
The Court did not pre-emptively impose time limits on Ms Meshram’s cross-examination. She was, however, forewarned that if the nature of the cross-examination was not assisting the Court in relation to the matters which lay for determination, that position may change. Eventually, and upon application by Counsel for the respondents on a number of occasions, it became necessary to curtail[10] Ms Meshram’s cross-examination of each witness, on the basis that the matters being traversed were not of relevance or assistance. In those instances the Court gave Ms Meshram advance notice of a period of time which would still be allowed in relation to the witness in question, so that she could better focus her questioning. The Court was also open to consider time then being extended on application by Ms Meshram if questioning had pivoted to be useful. The Court did not decide lightly to restrict the cross-examination of witnesses by Ms Meshram, but did so only when it became apparent that Ms Meshram had usefully exhausted avenues of questioning.
[10] Pursuant to s 197 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)
EVIDENCE
The following evidence was received by the Court at hearing:
(a)for Ms Meshram:
(i)a witness statement made by her on 26 November 2020 (and which was later adopted by her in the witness box as being sworn evidence in chief), filed in the Federal Court of Australia (AM Statement);
(ii)Affidavit of Ms Meshram sworn on 3 March 2023 (Reply Affidavit);
(iii)Exhibit “1A” being a payroll extract for periods 1 January 2018 and 31 December 2019 relating to Ms Meshram; and
(iv)Exhibit “2A” being a bundle of screenshots of text messages between Ms Meshram and the fourth respondent, Mr Mario Iacono.
(b)for the respondents:
(i)Affidavit of Salvador Mario Iacono sworn 25 January 2023 (Iacono Affidavit);
(ii)Affidavit of Richard Emilio Cortes sworn 23 January 2023 (Cortes Affidavit);
(iii)Affidavit of Claudio Musa sworn 16 January 2023 (Musa Affidavit);
(iv)Affidavit of Nghiep Minh Trang sworn 25 January 2023 (Trang Affidavit);
(v)Affidavit of Marian Mirza sworn 25 January 2023 (Mirza Affidavit);
(vi)Affidavit of Chan Shion (Sean) Ng sworn 24 January 2023 (Ng Affidavit);
(vii)Affidavit of Bianca Mylene Nursoo sworn 24 January 2023 (Nursoo Affidavit);
(viii)Exhibit “1R” being an email chain between Ms Nursoo and Ms Meshram spanning the dates 29 to 31 July 2018;
(ix)Exhibit “2R” being a bundle of original handwritten notes on the obverse of Bing Lee price tickets, top note dated “June 18”;
(x)Exhibit “3R” being a bundle of original handwritten notes, top note dated 13 July 2018;
(xi)Exhibit “4R” being a bundle of original handwritten notes on obverse of Bing Lee price tickets, top note dated 22 June 2018; and
(xii)Exhibit “5R” being an email from the sixth respondent, Mr Claudio Musa to staff at the OG store dated 6 December 2018.
As became a pattern throughout the hearing, Ms Meshram appeared to take the view that where the respondents took a particular course, she should too. For example, in the course of identifying the evidence, the respondents initially sought to tender a particular document. Ms Meshram then wanted to tender documents too, albeit she did not have documents to tender and was not able to identify with any particularity what said documents might be, or to which issues they might go. She was simply desirous of tendering a document so as to be on par with the respondents. Ms Meshram made a number of objections to the respondents’ Affidavits, many of which were upheld by the Court. It was explained to Ms Meshram that the effect of this was that the evidence was not before the Court, and that she had been successful in having it excluded.
Where objections were upheld in relation to Ms Meshram’s Reply Affidavit, this had the consequential effect that certain parts of the respondents’ evidence were no longer pressed. As such, the respondents did not read significant portions of Affidavits (and some Affidavits in their entirety). A schedule detailing the evidence not pressed was prepared by Counsel for the respondents at the conclusion of day 1 of the hearing to assist Ms Meshram and the Court. That schedule has been marked MFI-1 and placed with the file in this matter should regard need to be had to it for any future purpose. Notwithstanding that the respondents did not press certain evidence, Ms Meshram later sought to cross-examine upon the un-read material also.[11]
[11] See for example [108] to [111] below
A Court Book containing the relevant filed documents was prepared by the respondents and utilised by the parties, witnesses, and the Court throughout the hearing.
The evidence will be addressed first in relation to general matters which set out the relevant background and/or evidence which affects all claims. Beyond that background, where evidence is specifically relevant to the causes of action pleaded, and upon which the Court must make findings, it will be described and addressed relevant to the respective respondents.
Prior to addressing the individual allegations and the areas of dispute, it is necessary to make some general observations about Ms Meshram’s evidence, her conduct as a witness and credibility.
Ms Meshram’s notes
Annexed to the AM Statement are photocopies of handwritten notes said to have been made by Ms Meshram. The originals of the handwritten notes were produced in response to a subpoena issued to Ms Meshram for the respondents. Ms Meshram was reticent to produce the documents in response to the subpoena, though ultimately did so. She later resisted the originals being tendered into evidence.
The notes themselves are curious documents.
Some are written on the back of Bing Lee branded price tickets which appear to have come from the shelves of a store. They are relatively tiny pieces of paper, of approximately 10.5cm x 7.5cm. Other bundles of notes have been written on pieces of blank paper which were cut to the same approximate size of the price tickets.
Ms Meshram’s evidence about these notes was vague, inconsistent, combative, and shifted throughout the course of her cross-examination and submissions.
Ms Meshram was unable to explain why she had made the notes and obfuscated when asked about where and in what manner they were arranged and kept.[12] Under cross-examination Ms Meshram conceded that at no time, prior to their annexure to the AM Statement, were the notes brought to the attention of anyone at Bing Lee, much less did she report any of the incidents to which the notes were said to relate contemporaneously, despite purporting that she wanted said conduct to stop. The content of the notes also somewhat reflects the language of the RD and SD Acts, insofar as they specifically offer narrative that Ms Meshram felt insulted,[13] humiliated,[14] offended,[15] harassed[16] and discriminated against.[17]
[12] Transcript 14 March 2023 at T138.30 to 139.19
[13] Exhibits “3R” and “4R”
[14] Exhibits “3R” and “4R”
[15] Exhibit “3R”
[16] Exhibit “3R”
[17] Exhibit “2R”
Ms Meshram claims to be the author of the notes, albeit they refer to her in the third person. During cross-examination, Ms Meshram was asked about this feature and gave evidence in which she claimed to often speak about herself in the third person. While it is true that in submissions, and when cross-examining the witnesses for the respondents, Ms Meshram did frequently refer to herself in the third person (much to the confusion of the witnesses), the Court does not accept that this is Ms Meshram’s usual practice. Rather, it seems that Ms Meshram does so in matters which she considers to be legal in nature.
The handwritten notes are sometimes specifically dated, but in other instances dated with only a month and a year, or an approximation such as “mid June 2018”.[18] This is unusual for documents which are alleged to have been written on the same day as the incidents they purport to record. Ms Meshram also claimed, while under cross-examination, that the notes were written contemporaneously in the OG store,[19] but changed her evidence to explain that the reference in one bundle of notes to “mid June” was because she had written that particular note at home late the same evening.[20] I do not accept that if a note was made recording an incident which had occurred earlier on the same day, that this would cause it to be dated in so imprecise a fashion.
[18] See for example, Exhibit “2R”
[19] Transcript 14 March 2023 at T137.9 to T137.11
[20] Transcript 14 March 2023 at T131.29 to T131.30
On balance, even accepting that the notes were penned by Ms Meshram (albeit there was no evidence before the Court that it was in fact her handwriting) it is open to infer, and I do, that they were created later than the events which they purport to record. Rather than establishing that the notes were written in the third person because this is Ms Meshram’s usual way of writing about herself, it is also open to infer, and I do, that Ms Meshram prepared the notes later and in contemplation of use in a claim against Bing Lee and/or the individual respondents. It appears that rather than seeking to escalate any of the alleged incidents as and when they occurred, such that Bing Lee management might follow its complaints-handling processes and/or intervene, these notes appear to have been prepared, stockpiled and only disclosed after the event of Ms Meshram’s resignation.
For the foregoing reasons, limited weight is given to the notes which form Exhibits “2R”, “3R” and “4R” (and their facsimiles which are Annexures “AM-5” to “AM-7” to the AM Statement) as well as to the copies of the other handwritten notes which form Annexures “AM-8”, “AM-12” to “AM-14” and “AM-20” to “AM-22”.[21] I am not satisfied that these documents represent a contemporaneous record of the incidents which Ms Meshram purports they record. Where relevant, the notes will also be addressed below in relation to any of the alleged incidents to which they purportedly relate.
[21] Other bundles of notes having been excluded by reason of objections to the AM Statement and correlative annexures
Credit
Ms Meshram made the cross-examination of her by the respondents' Counsel, challenging. She was consistently combative and it was clear that Ms Meshram was committed to a narrative[22] which she pursued even when in non-sequitur to the questions asked. Ms Meshram appeared to have learnt her narrative by rote, and could not deviate from it. She frequently answered a different question than that which she was asked in pursuit of her narrative. Ms Meshram’s determination to disagree with Counsel for the respondent was particularly obvious when disagreeing with propositions which were either not controversial, or may even have assisted her case.
[22] See [3] above
Rather than reflecting the authenticity of her version of events, the inflexibility with which Ms Meshram’s evidence was delivered, and the implausibility of multiple components of the evidence, ultimately undermined it. Examples of this include Ms Meshram’s steadfast insistence that any reference during cross-examination to her resignation be, instead, to her “forced resignation”, and the considerable evidential gymnastics employed so as to unequivocally deny ever having seen or accessed Bing Lee’s staff policies or intranet for the purposes of her vicarious liability allegations. In this regard, it was clear that Ms Meshram wanted to establish that she had never been made aware of (let alone seen) Bing Lee’s policies and that she did not have access to any staff intranet or even financial systems. This was despite the fact that she had annexed extensive screenshots from the same intranet to the AM Statement. Despite having not deposed to it, in the witness box, Ms Meshram claimed to have been given the screenshots by a person from Bing Lee’s IT Department whom she could neither name nor even vaguely identify. I reject the claim that Ms Meshram had no access even to her own pay details, given that she was quite precise and fixated about her fortnightly pay. That pay varied each fortnight because it included a base salary and also an amount calculated on commissions from sales. Despite this, in an effort to steadfastly maintain that she had no access to, or knowledge of, Bing Lee’s internal computer systems/programs, she insisted that she had no way of knowing about her sales figures. I find this implausible. I am satisfied that the provenance of the screenshots from Bing Lee’s “Our Shed” intranet is that they were taken by Ms Meshram herself, for evidentiary purposes, to be used at a later date.
Next, applying ordinary human experience to the allegations and evidence, the manner and terms in which Ms Meshram says that various of the respondents spoke to her, were in some instances inherently unlikely. For example, her accounts have people commencing mid-sentence and speaking in a way which is not natural. Ordinarily, this might be explained by an unrepresented litigant’s lack of legal training, together with an understanding that lay persons have a tendency to give “gist” evidence.[23] As such, it might be assumed in Ms Meshram’s favour that the evidence was not being advanced as being verbatim memory. The challenge with such an explanation in these proceedings is that, as already noted, Ms Meshram appears to have memorised the pleading and evidence and recounts it by rote, irrespective of how stilted or unnatural the resulting account might be, and she is insistent that her version is entirely accurate.
[23] See Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [118] to [130] per Jackman J
Ms Meshram generally refused to acknowledge that the sales environment in which she worked while at Bing Lee was competitive, or that there was an environment at the OG store whereby people engaged in usurping the sales of other staff, (a practice referred to at Bing Lee as “sharking” see [93] to [97] below). This was despite her own evidence that such conduct occurred. It is open to infer, and I do, that having read the respondents’ evidence which included clear allegations that Ms Meshram was involved in usurping sales, she was determined to deny any knowledge of such a practice, including by other staff.
Ms Meshram was also considered by her colleagues to be more than ordinarily sensitive to perceived insults, examples of which could be seen during the cross-examination of her, including a highly emotive exchange about an email (which forms Exhibit “1R”) in which Ms Meshram’s name had been spelt incorrectly.
Aside from providing another example[24] of Ms Meshram being made aware of the “Our Shed” intranet (because it is referred to within the email), two additional matters emerged from the cross-examination about that email. The first is that Ms Meshram took the view that she had clearly asked its author (Ms Nursoo) to re-issue the email. If that is what Ms Meshram had wished to convey, it was by no means clear from the content of Exhibit “1R”. Further, when she received Ms Nursoo’s reply and responded in turn, there was nothing emanating from Ms Meshram’s response to indicate anything other than that she accepted Ms Nursoo’s explanation (that the error was typographic error and caused by Ms Nursoo having typed it too quickly) and Ms Nursoo’s apology, and that any issue had now been resolved. Ms Meshram’s view that matters she clearly conveyed were not in fact objectively discernible as such, became another common theme in the proceedings. The second matter which emerged is that, based on this typographic error alone, Ms Meshram claimed to feel “very bad and humiliated”.[25] Ms Meshram’s reaction to the email during cross-examination appeared highly emotional and, with respect, disproportionate to the content of the email. Given that Ms Nursoo had explained the cause of the typographic error, the extreme reaction to it in Court many years later contributed to the Court’s view that Ms Meshram was hyper-sensitive to, and likely searching for, slights in the workplace.
[24] See [82] to [88] below
[25] Transcript 14 March 2023 at T122.34
The Court was left with the impression not of a witness who was accurate in their recollections such that they could re-tell events or answer questions in an adaptable way, but rather of a person telling a story which had been reverse-engineered from a desired outcome, whatever that might be, and memorised. Overall, Ms Meshram was not a believable witness. Where there were discrepancies between her version of events and the versions of other witnesses, in each instance the Court prefers the evidence of the other persons.
Evidence of Sean Ng
The evidence of one particular witness, Mr Sean Ng, warrants being set out here as he was not himself a respondent and his evidence provides general context to the subject matter of the proceedings, and the background to the claims. Mr Ng is, and at all times relevantly was, the HR & Payroll Manager of Bing Lee. Mr Ng is a manager to whom Ms Meshram allegedly says she made complaints about her treatment while an employee at Bing Lee (see [300] below).
Mr Ng was considered and candid in his evidence.
Mr Ng gave detailed Affidavit evidence regarding the complaints and grievance handling process at Bing Lee.[26] That evidence was undisputed by Ms Meshram who never engaged in the process because, as is detailed below, she did not make complaints about the alleged incidents which are the subject of these proceedings.[27]
[26] Ng Affidavit at [40] to [42]
[27] See also Ng Affidavit at [46], Iacono Affidavit at [71] and Cortes Affidavit at [15]
Mr Ng was forthright in discussing (the few) incidents which had arisen in his time at Bing Lee in which complaints were made involving either racially-based conduct or conduct of a sexual nature, including details as to the manner in which the complaints were managed, and lessons learnt.[28] The overarching theme of these occurrences appeared to be that Bing Lee takes such conduct seriously, handled said complaints swiftly and that, where allegations were found to have been established, the consequences for any perpetrator were serious (and in one case, involved termination of employment).
[28] Ng Affidavit at [42] to [45]
Mr Ng exhibited no animosity towards Ms Meshram in his evidence and while being cross-examined was in fact complimentary to her, saying that she was undoubtedly one of the top sales people at the OG store, that she was very good at her job and that he liked her very much. Where there is a contest between the evidence of Ms Meshram and Mr Ng, I prefer Mr Ng’s account.
Mr Ng gave detailed evidence to the effect that, without a full induction including as to the existence and use of the “Our Shed” intranet site, Ms Meshram would not have been given access to the sales floor, known what to do once there or how to process sales and would not have known how to operate personnel systems such as leave applications.
It became apparent from Ms Meshram’s narrative during the cross-examination of Mr Ng that she expected that, after her resignation, she would be sent a complaint form for employees so that she could then make her complaints known. This was despite the fact that in the period between Ms Meshram no longer attending for her shifts, but before her resignation, Mr Ng’s mobile number was provided to Ms Meshram by email and she was invited to speak to him about the reasons for her non-attendance.[29] While being cross-examined herself, Ms Meshram conceded that she had ignored that email and her explanation for having done so was (for the first time) that she feared for her life. The Court does not accept this explanation for not engaging with Mr Ng or Bing Lee. On balance, this course of conduct by Ms Meshram was another example of her commitment to complaining to the Australian Human Rights Commission (AHRC) and/or pursuit of litigation rather than genuinely raising concerns with Bing Lee for resolution. It further suggests that she was determined to find fault with any assistance offered to her, in form and/or substance.
[29] Ng Affidavit Annexure “BL-2”
CONTEXTUAL BACKGROUND TO CLAIMS
Based on all the evidence before me, I find that the allegations made by the Further Amended Statement of Claim happened against the following background.
Commencement of Ms Meshram’s employment with Bing Lee
As was detailed above at [2] above, Ms Meshram was employed as a sales consultant with Bing Lee from 22 January 2018 until her resignation on 25 February 2019. Ms Meshram commenced her employment with Bing Lee at its store in Bankstown, and was later transferred to the OG store in the same role.
The evidence discloses that assignment to the OG store is considered a relatively prestigious posting. The OG store is different than other Bing Lee stores in two main respects. The first is that it is co-located with the Bing Lee Clearance Centre (Clearance Centre), with easy access between the respective stores as any purchases from the Clearance Centre need to be processed at the OG store’s registers.[30] The second is that the OG store is located beneath Bing Lee’s corporate headquarters. As such, the staff of the OG store have greater access to management and Human Resources staff than would employees at other Bing Lee stores, at least in passing, casual interactions (such as those referred to by Mr Ng at [300] below).
[30] Ng Affidavit at [18]
Ms Meshram sought to construe her re-assignment from Bing Lee’s Bankstown store to the OG store has having been against her will,[31] albeit no cause of action is advanced in this regard. On the material before the Court there is nothing discernibly untoward about the reassignment of Ms Meshram to the OG store, nor is there evidence to support the suggestion Ms Meshram was given no option but to transfer. To the contrary, Ms Meshram was asked to transfer on the basis that there was a need at the OG store for a specialist in white goods and cooking appliances,[32] and because Bing Lee considered Ms Meshram to have those specialist skills. The transfer appears to be routine, offered in the ordinary course of Bing Lee’s business and taken up voluntarily. Accordingly, it also seems permissible within the terms of Ms Meshram’s contract of employment.[33] The material also does not support the suggestion which Ms Meshram now makes that she was unhappy about the transfer, much less that she expressed any discontent about it, beyond feeling apprehensive that she may not yet have the necessary brand knowledge for certain products carried by the OG store, with which she was unfamiliar.[34]
[31] AM Statement at [5] and Transcript 14 March 2023 at T107.26 and T108.29
[32] Ng Affidavit at [12] and Iacono Affidavit at [12]
[33] AM Statement Annexure “AM-1”
[34] Ng Affidavit at [12]
Accordingly, on 7 March 2018, Ms Meshram commenced work at the OG store.
Induction and policies
Evidence documenting Ms Meshram’s specific induction as an employee of Bing Lee was somewhat limited. Mr Ng was candid in his evidence that there was no formal record kept of the induction of individual employees, such that there is no readily accessible way to demonstrate which policies Ms Meshram had accessed during her training and induction, nor during the course of her employment. It would seem to be in Bing Lee’s interest that said record-keeping practices should improve, if they haven’t already.
However, the undisputed evidence before the Court is that Bing Lee staff undergo an induction process which, in the case of a sales consultant,[35] spans a week.[36] The induction process includes:[37]
[35] Being the position held by Ms Meshram
[36] Ng Affidavit at [34]
[37] Ng Affidavit at [32] to [35] (numbering added)
(a)being facilitated by the store manager, assistant store manager or a senior employee;
(b)employees being given various information and documents, including:
(i)Employment Contract and Letter;
(ii)Employee Personal Information Form;
(iii)Tax File Declaration;
(iv)REST Superannuation Booklet;
(v)Fair Work Information Statement; and
(vi)Superannuation Choice Form.
(c)all employees being briefed on the expectations of them, and appropriate behaviour, including:
(i)introduction to the team;
(ii)history, background and structure of the business;
(iii)job description, roles and responsibilities within the store;
(iv)physical layout of the store, including staffrooms, kitchenettes, toilets and emergency exits;
(v)definitions of frequently used acronyms;
(vi)systems training, including point of sale (POS), being hardware and software which (among other things) takes customer orders, checks model numbers and prices and the “Our Shed” intranet;
(vii)the commissions structure from sales;
(viii)sales budgets and other KPIs;
(ix)dress code;
(x)standard operating procedure, including daily tasks and responsibilities
(xi)trading hours, weekly staff meeting days and times;
(xii)product knowledge training;
(xiii)emergency procedures; and
(xiv)sales technique training: how to approach and assist customers, listening to and resolving product or sales concerns, and how to close sales.
Ms Meshram’s contract of employment[38] referred to Bing Lee’s policies, and required that she comply with them and included the following in relation to the policies and equal opportunity employment (errors in original):[39]
[38] AM Statement Annexure “AM-1”
[39] Ng Affidavit at [31]
Bing Lee policies
Bing Lee has policies and procedures covering operational matters, which will be varied from time to time. You must comply with these policies and procedures. Failure to comply with policies and procedures may result in disciplinary action or dismissal. Bing Lee reserves the discretion to vary the application of the provisions of policies, in accordance with the circumstances of particular cases
Equal employment opportunity
Bing Lee's policy is that all employees are given equal employment opportunity and that no employee is subjected to unlawful discrimination by any other employee. You must always act in accordance with the principles of equal employment opportunity, and comply with Bing Lee’s policies regarding avoidance of discrimination and harassment.
The consistent evidence of the respondents was that:
(a)all employees had ready access to Bing Lee’s policies;[40]
[40] Iacono Affidavit at [17], Ng Affidavit at [29] and [36], Musa Affidavit at [30] to [31]
(b)the policies were electronically available and there were a number of computers throughout the OG store at which these policies could be readily accessed;
(c)if an employee had not undertaken induction training, they would have been unable (in the sense of being wholly untrained) to be able to undertake their employment in the store because they would also have had no idea of how Bing Lee’s other systems operated, including the POS system which enabled them to process the sales they made;[41] and
(d)Bing Lee had policies which included the following:[42]
(i)Bing Lee Employee Handbook;
(ii)Bing Lee Complaints Handling Procedure;
(iii)Bing Lee Bullying and Harassment policy;
(iv)“Effects of harassment and bullying” document;
(v)“Identifying bullying and harassment” document;
(vi)“Are you being bullied? Information for workers” document; and
(vii)“signs of bulling & harassment Supervisor’s guide”.
[41] See [69] above
[42] Ng Affidavit at [30] Annexure “BL-5” and Musa Affidavit at [30] Annexure “CM-2”
The consistent evidence for the respondents was that Bing Lee also had a staff intranet site called “Our Shed”. The “Our Shed” intranet included links to the policies referred to at [80] above, as well as information including details of store promotions, marketing, merchandise information and access to necessary human resources documents such as leave forms.[43] In addition to having mere access to Bing Lee’s policies via the “Our Shed” intranet, the express evidence is that staff were encouraged to access the intranet.[44] There is also evidence that following a staff meeting at the OG store on 5 December 2018,[45] a number of the Bing Lee policies were re-circulated to OG store staff, including to Ms Meshram.[46]
[43] Ng Affidavit at [39]
[44] Ng Affidavit at [29] and [39]
[45] See [101] to [107] below
[46] Musa Affidavit at [30] and Exhibit “5R”
There is no evidence before the Court to suggest that, upon arrival at the OG store, there was any need to further induct Ms Meshram to Bing Lee’s policies, because she was already a Bing Lee employee and, therefore, had undertaken this training upon the commencement of her employment with Bing Lee at the Bankstown Store.[47]
[47] Iacono Affidavit at [16] and [17]
By contrast, Ms Meshram’s evidence is that she was wholly unaware of, and unable to access, any Bing Lee policies. She also gave evidence that she had no knowledge of, or access to, Bing Lee’s in-store computer and financial systems in order to see what her sales figures were. This evidence was given by her despite the fact that she had annexed screenshots of such sales figures same to the AM Statement, which on their face were sourced from the “Our Shed” intranet.[48]
[48]AM Statement Annexure “AM-2”, see also [59] above
Ms Meshram’s claim to have been absolutely unaware of, and unable to access Bing Lee’s policies and systems is generally implausible. That is specifically so given the evidence that Ms Meshram would not even have been able to process sales without access to those systems. All evidence pointed to her being a proficient sales person. Nor would she have been able to apply for leave, something which the evidence discloses she had done.
It is also not plausible to believe that if a person, who was as performance-oriented as Ms Meshram could not access their own sales figures, that they would have made no enquiries during the year in which they were employed, so as to query this and/or obtain such access.[49] Ms Meshram did query her pay, on a number of occasions. I reject the assertion that Ms Meshram allowed herself to be oblivious to her sales results. Overall, the evidence regarding Ms Meshram’s alleged lack of access to Bing Lee’s policies appears to have been tailored to establish, for the purposes of ss 18A and 18E of the RD Act and ss 106 of the SD Act, that Bing Lee did not take reasonable steps to prevent its employees or agents from contravening those Acts.[50]
[49] Other than the very vague allegation that she asked someone from IT for screenshots which had already been rejected at [59] above
[50] See [289] to [297] and [316] to [319] below
In addition, the specific and uncontested evidence of the sixth respondent, Mr Claudio Musa, is that he witnessed Ms Meshram accessing the “Our Shed” intranet system.[51]
[51] Musa Affidavit at [32]
I reject Ms Meshram’s allegation that she had no knowledge of, or access to, the “Our Shed” intranet system for the foregoing reasons[52] and find that if Ms Meshram did not access Bing Lee’s policies, it was because she elected not to do so.
[52] Including the findings at [59] above
The uncontested evidence for the respondents was also that regular (weekly) in-store meetings were held at the OG store, ordinarily on a Saturday morning, the content of which was also summarised for staff who were not in-store for any particular meeting.[53] The weekly meetings were sometimes attended by sales representatives for brands/products sold in the store, to provide product training to Bing Lee staff.[54] There was also evidence of additional, refresher policy and conduct training specifically given at the OG store which immediately preceded Ms Meshram’s departure from that store in December 2018.[55]
[53] Iacono Affidavit at [44] to [45]
[54] Iacono Affidavit at [46] and Ng Affidavit at [38]
[55] See [101] to [107] below
Composition of the OG store workforce
Upon Ms Meshram’s arrival as a staff member at the OG store there were, unsurprisingly, existing (and in many cases extremely longstanding) collegiate relationships among the staff.
Ms Meshram asserts, without any corroborating evidence, that during her time working at the OG store, female employees were in the minority. In contrast, the generally consistent evidence of witnesses for the respondents (comprised of both OG store staff and Bing Lee managerial staff) is that the demographic make-up of the OG store was approximately 50:50 female to male employees[56] (albeit this proportion would vary from shift-to-shift depending on which staff were rostered for work on any given day).[57] The evidence reveals no particular disparity or imbalance in the gender ratio of the employees at the OG store.
[56] See for example, Mirza Affidavit at [12], Musa Affidavit at [20], Iacono Affidavit at [23], Cortes Affidavit at [14] and Transcript 16 March 2023 at T318.6, T319.4 and T349.6
[57] Ng Affidavit at [20]
Ms Meshram also alleges that she was the only Indian female staff member at the OG store. The evidence of all witnesses is that while that demographic combination is true, Ms Meshram was not the only Indian employee at the OG store. At least two other (male) Indian staff members (Mr Fateen Khan and Mr Rahul Jha), were employed at the OG store during Ms Meshram’s time working there.[58]
[58] Ng Affidavit at [20] to [22], Cortes Affidavit at [14] and [16], Musa Affidavit at [21] and Prendergast Affidavit at [13]
The evidence of the witnesses for the respondents was relatively consistent that the sales workforce of the OG store (and anecdotally of Bing Lee as an employer more generally) was racially and culturally diverse.[59] There is nothing before the Court to indicate that Bing Lee itself exhibited or tolerated a culture of national or racial intolerance towards Indian persons specifically, to either gender, on the basis of religion nor to any other particular group. Based on the evidence received, the Court is unable to accept that such a stance or culture existed or was tolerated at the OG store during Ms Meshram’s tenure there. In relation to these allegations, to the extent there was a contest on the evidence, I prefer the evidence for the respondents.
[59] Ng Affidavit at [23], Iacono Affidavit at [21], Cortes Affidavit at [13], Musa Affidavit at [21] and Prendergast Affidavit at [13]
Sharking
The witnesses for the respondents were consistent in their evidence about a practice which (at Bing Lee) is referred to as sharking. The term presumably intends to evoke a sense of predatory behaviour in the pursuit of customers on the sales floor. There is nothing to suggest that this behaviour of retail staff is unique to Bing Lee.
The material before the Court demonstrates that the sales staff at Bing Lee were employed with a base salary, and also remunerated additionally with commissions from their sales. Staff were further incentivised by additional bonuses and vouchers for achieving consistent and/or high performance results.
The evidence indicates that the sales floor operated an “honour system”, with staff mutually trusting one another to act appropriately and in the spirit of camaraderie. Specifically, there was a general understanding that no one should deliberately usurp the sales of colleagues.
The evidence of all witnesses, including an eventual, begrudging acceptance by Ms Meshram under cross-examination, was that Ms Meshram was a high-performing sales consultant at Bing Lee (and not only by reference to the OG store).[60] The evidence before the Court indicates that Ms Meshram was perceived by those who worked with, and observed, her at the OG store to be an aggressive salesperson with limited regard for the courtesies and etiquette which had evolved on the sales floor. Specifically, she was perceived to be a person who often engaged in sharking.[61]
[60] Iacono Affidavit at [11] and [19], Cortes Affidavit at [10]and Exhibit “1R”
[61] See for example, [220] to [222] below relating to the Trang allegation, [259] below relating to the Mirza allegation and Prendergast Affidavit at [9]
If a person’s remuneration is augmented from sales they secure, it is unsurprising in the context of a commission-based remuneration model, that resentment might grow among sales staff if there was a perception that a colleague was taking a sale, and its resultant financial benefit, from another. It is difficult to pinpoint how soon after her arrival at the OG store relationships between Ms Meshram and her colleagues became strained. However, the evidence before the Court is that Ms Meshram achieved sales by sharking with some regularity, and that some of the incidents alleged by Ms Meshram in the Further Amended Application had their genesis in sharking situations.
Timing of the alleged incidents
The incidents which form the subject of the claims against the respondents occurred in two discernible tranche
In relation to the first set of incidents, they turn upon Ms Meshram allegedly being the subject of discrimination pursuant to the RD Act. Two of those incidents involve individual respondents calling Ms Meshram (variations of) a “greedy Indian” (see [215] and [264] below). Chronologically relevant to the June and July allegations are Exhibits “2R”, “3R” and “4R”, which are bundles of the handwritten notes referred to at [49] above and, which for the reasons adverted to there, I have given little weight unless otherwise indicated.
The next alleged incidents, are those which more immediately preceded Ms Meshram’s departure from the OG store. These are alleged to have occurred in November 2018. But for the allegations involving the fourth respondent Mr Iacono, all the allegations said to have taken place in November 2018 are those pertaining to the SD Act.
Ms Meshram’s departure and subsequent resignation from Bing Lee
5 December 2018 – staff meeting
A number of the respondents gave evidence about a staff meeting which took place at the OG store on 5 December 2018 (December meeting). The evidence discloses that the December meeting had been arranged in response to a number of interpersonal and conduct issues being reported by team members in the OG store, particularly sharking.
Ms Bianca Nursoo also gave evidence about that meeting. At the time of the alleged events the subject of these proceedings Ms Nursoo was the Training Manager at Bing Lee, having commenced in that role in February 2017 until promotion to her current position in October 2019. Ms Nursoo was initially the second respondent in these proceedings, until her removal.[62]
[62] See interlocutory judgment at [28] to [40]
Ms Nursoo characterised the December meeting as being refresher training of conduct expectations which were previously covered in induction (which process Ms Nursoo was responsible for overseeing). The December meeting was held after hours and followed by team dinner at a local restaurant. The evidence is that Ms Meshram attended both the December meeting and the dinner.
Ms Nursoo’s evidence was that an aide memoire style document (which was prepared specifically for the occasion and was not an official Bing Lee document) was distributed to the OG store staff at the December meeting. The document was described as containing “non-negotiables” of conduct and expectations for the OG store (non-negotiables document).[63] The content of the non-negotiables document seems relatively unremarkable for a retail context and included commonplace matters such as properly notifying sick leave to managers by phone and not text message, annual leave being booked early, starting times and lunch breaks. A considerable part of the document was directed (in specific and practical ways) to discouraging the practice of sharking.
[63] AM Statement Annexure “AM-10”
The evidence discloses that the OG store managers spoke to the content of the non-negotiables document, following which the staff were each asked to counter-sign their respective copies to acknowledge that they had read, and understood, it. Ms Meshram’s evidence was that at the meeting she was being pressured to sign the non-negotiables document. Ms Nursoo’s evidence was that so as to not delay the meeting (and the subsequent team dinner which was scheduled to follow) she told Ms Meshram to take the document home, and read it at her leisure prior to signing it. It is presumably because Ms Meshram did so, that she still had the document to annex to the AM Statement.
The evidence discloses that Ms Meshram was the only staff member who refused to sign the non-negotiables document. She was permitted to take the document home to consider it. I am satisfied that Ms Meshram was delaying the meeting by refusing to sign it. To the extent that Ms Meshram relies on the December meeting as being an example that she was treated differently than other staff, that was because she was behaving in a way which was different than her colleagues who, it appears on the evidence, had no qualms about counter-signing the rather anodyne document to acknowledge its contents including, inter alia, the discouragement of sharking.
The next day, 6 December 2018, Mr Musa sent an email to OG store staff, including Ms Meshram, to recirculate a number of Bing Lee’s policies. That email forms Exhibit “5R”.
7 December 2018 – the telephone recording incident
On 7 December 2018, an incident occurred in the OG store. The evidence in relation to the incident was initially not read because the claims which the incident was said to ground had been struck out by the interlocutory judgment. However, during cross-examination of Mr Cortes, Ms Meshram asked him about a particular statement he conceded he had made to her, namely: [64]
After all the things I’ve done for you, you're pissing in my pocket.
[64] Cortes Affidavit at [36]
By reference to Mr Cortes’ Affidavit, that statement was made in the context of the 7 December 2018 incident in question.[65]
[65] Cortes Affidavit at [28]
Mr Cortes then elaborated on this evidence in the witness box. He said he was made aware by staff that a mobile telephone had been discovered and was being used as a recording device on the sales floor at the OG store. Mr Cortes said that he was asked to come out to investigate the situation. Mr Cortes asked “Whose phone is this recording?” to which Ms Meshram responded:[66]
It’s not – it’s my phone, but somebody must have used my PIN to start the recording
[66] Transcript 20 March 2023 at T436.35 to T436.39
Mr Cortes gave evidence that the phone had over 100 recordings on it and, that in frustration with Ms Meshram, he made the statement at [108] above.[67] Mr Cortes contextualised the statement with a lengthy summary of Ms Meshram’s conduct and unpopularity in the store and of the recording incident. Mr Cortes summarised that there had been continuous issues with Ms Meshram’s interactions with staff until it became clear that Ms Meshram was generally the common denominator in any staff unrest, largely relating to her sharking conduct.[68]
[67] Transcript 20 March 2023 at T436.40
[68] Transcript 20 March 2023 at T436.42 to T437.30
8 December 2018 – Ms Meshram no longer attends work
Without explanation to anyone at Bing Lee, Ms Meshram did not attend the OG store for her usual duties from 8 December 2018 onwards. It is open to infer that the events of 5 to 7 December 2018 were instrumental in her decision to leave and not return, in particular having had her phone found to be recording staff on the sales floor.
On 12 December 2018, Mr Iacono informed Mr Ng that Ms Meshram had not been at work for her shifts. Mr Ng gave evidence of the steps he took to contact Ms Meshram by telephone and email during the period 12 December 2018 to 28 December 2018. Ms Meshram did not reply to any of the calls or emails.[69]
[69] Ng Affidavit at [25] and see [71] above
Mr Ng gave evidence under cross-examination that, at a certain point following Ms Meshram’s departure from the OG store in December 2018, she had exhausted her paid sick leave entitlements. In accordance with Bing Lee’s practices, Ms Meshram’s leave was thereafter processed as being annual leave.
Resignation
On 25 February 2019, Ms Meshram resigned by an email sent to Bing Lee’s directors Mr Lionel Lee and Ms Yenda Lee, together with an array of senior Bing Lee staff.[70] The resignation was in the following terms:
Hi,
I, Aishwarya Meshram, had joined your company (BingLee Electrical Pty Ltd) with an intention to be a part of this company & work honestly for this company, its growth and earn my living for long term.
And in return your company BingLee will provide me support, respect, safe work environment & provide my work rights & entitlements on time as per my contract signed between your company Binglee and me.
However above mentioned did not happen, instead in return of my hard work & honesty at BingLee, I had been told numerous times by management staff to resign from BingLee and had been abused and I had no other reasonable choice but to resign because of the following reasons:
I have been abused, bullied, discriminated, threatened ,underpaid my entitlements, and when asked for my work rights I had been threatened to be sacked, abused, insulted, humiliated repeatedly, exploited, played dirty political games, racism, hurt me in numbers ways, traumatised to that extend that I fear for my life and feel unsafe, unprotected at your end.
And when I had made complaints to various levels of managements (store managers, head office managers, company business development managers, HR manager, etc) who all are very well aware of my complaints numerous times throughout my stay in Binglee for me being bullied, suffered unsafe work environment, discriminated, harassed, threatened by work colleagues along with managers (have complained to Mario, Richard, Bianca, Peter Harris, Ritchie, Sean, etc) & made me feel like I am breaking my head against brick wall as no action has been taken till now.
Instead I have been pressurised on numerous times by management staff to resign from BingLee as other staff and managers are working for long time in BingLee and was told that no action will be taken against them & was further subjected to increased discrimination, bullying, harassment, threatening behaviour after I had made verbal complaints to that extend that it has affected my health.
[70] AM Statement Annexure “AM-4”
Bing Lee has not produced evidence of complaints by Ms Meshram. That is because, on her own evidence, Ms Meshram did not put any of her complaints in writing despite having demonstrated an ability to escalate matters by email, for example Exhibit “1R” (discussed at [62] to [63] above). Despite this, and despite her alleged contemporaneous notes there is no “paper trail” from Ms Meshram, nor does she allege one exists such that the absence of its production by Bing Lee in these proceedings would be a significant omission.
It warrants recording also that Ms Meshram take a particularly one-sided view of how matters should be raised and recorded. It emerged from the cross-examination of each of Messrs Iacono, Cortes and Ng that Ms Meshram’s reason for not raising matters in writing was because she was only advised to do so orally. Apparently, from Ms Meshram’s perspective she would only take action if asked to do so in writing. Despite this, Ms Meshram also took the view that any matter she raised orally ought to be formally escalated, despite it not being in writing.[147]
[147] See for example Transcript 16 March 2023 at T325.28 to T325.40
Overall, it is open to conclude that Ms Meshram was not desirous of raising complaints with Bing Lee in a contemporaneous fashion, nor in writing. It is further open to infer, and I do, that rather than documenting events in real time, Ms Meshram was assembling a dossier of complaints which she intended to make known to Bing Lee only after she departed its employ. This is consistent with the manner in which the notes are expressed, namely, the absence of contemporaneous complaints to Bing Lee, the vague and variable date system employed and the use, in multiple instances of the third person and the language of the various statutes (see [53] above). It is also consistent with her (unmet) expectation that once she resigned Mr Ng would send her a complaints form by which she could then reveal her grievances.
To the extent that a number of allegations have been found to have a core factual basis but to have been embellished, it is open to infer and I do, that the failure to make formal complaints, supported by the allegedly contemporaneous notes was not a desirable course to Ms Meshram because it would have enabled a timely investigation of them, when memories were fresh and other evidence obtainable. The evidence suggests that Ms Meshram did not want disputes between herself and her colleagues resolved in a timely, mutually satisfactory way. Rather, the evidence supports a conclusion that she instead wanted to pursue the individual respondents, and Bing Lee in proceedings under the RD Act.
Allegation that AHRC complaint presaged
There is no extant allegation in the Further Amended Application pursuant to either s 27 of the RD Act[148] that Ms Meshram was threatened with dismissal, prejudiced, intimidated or coerced or threatened with dismissal because of a foreshadowed allegation or complaint. However by her Reply Affidavit Ms Meshram said for the first time that “in or around mid-November 2018” she made her intent to complain to the AHRC known to Bing Lee by telling Mr Iacono.
[148] Or s 94 of the SD Act
As part of allegedly foreshadowing that complaint to Mr Iacono, Ms Meshram claims to have specifically told him about a number of matters (which form some of the allegations in these proceedings), which at the time she said would form part of her impending AHRC complaint.
I reject that evidence for the following reasons:
(a)the evidence in this regard was raised for the first time in Ms Meshram’s Reply Affidavit at [5(a)]. It appears neither in the AHRC Complaint, nor any version of the pleading or the AM Statement.
(b)when asked in cross-examination about this new allegation, Ms Meshram’s explanation for how it was that she came to know about the existence of the AHRC and the ability to make a complaint to that body, was implausible. In short, Ms Meshram said that she was on a train and was crying when a person, whose name she does not know, but who discernibly worked at Bing Lee because they were in a Bing Lee uniform, approached her and suggested that she should make a complaint to the AHRC. Ms Meshram says she did not ask their name because she came to her stop and had to disembark from the train. Ms Meshram could not otherwise describe or identify the person and had to be pressed to even disclose the gender of the alleged Bing Lee staff member who was providing unsolicited legal advice on the Sydney train network. The Court was not persuaded by this explanation as to the inspiration for Ms Meshram having allegedly told Mr Iacono of her intention to lodge a complaint with the AHRC, and was left with the distinct impression that Ms Meshram was making the train event up while being questioned, in order to explain the recent inclusion of it for the first time in her Reply Affidavit;
(c)by reason of the matters set out in the preceding sub-paragraphs, the Court is of the view that if Ms Meshram had in fact told Mr Iacono of her intention, that this evidence would have been included in her AHRC complaint and also in her pleadings and the evidence filed in these proceedings, prior to evidence being filed in March 2023, only 10 days before the hearing.
Conclusion
Having found there to be:
(a)no conduct which contravenes the RD Act; and
(b)no failure to act on complaints, even to the extent any were raised;
there is consequentially no substance remaining to ground the allegation that Bing Lee failed to act because of Ms Meshram’s race or national background. Therefore [5(m)] of the Further Amended Application must be dismissed. The evidence demonstrates that when, in response to complaints which Ms Meshram did make verbally, she was encouraged to put any grievance she wished in writing to Bing Lee, she did not do so. I am also satisfied on the evidence that it cannot be said that no response was taken to her complaints. In fact, in some instances managers approached her to discuss incidents.[149] Managers suggesting (or in some instances encouraging) that a complaint be properly particularised and made in writing in accordance with usual company procedures is not “no response”. Accordingly, [5(k)] of the Further Amended Application is not established.
[149] See for example [231] above
On balance, Ms Meshram has wholly failed to establish that Bing Lee contravened either ss 9 or 15 of the RD Act.
Sex Discrimination
Alleged failure to take reasonable steps
By [4] of the Further Amended Application, Ms Meshram alleges that Bing Lee is vicariously liable for the comments and actions of the individual respondents who were its employees at the time of the alleged events, pursuant to s 106 of the SD Act.
For the reasons already set out above, none of the allegations raised against the individual respondents, namely that Ms Meshram was the subject of sexual harassment, as defined by
s 28A of the SD Act, during her employment with Bing Lee, has been established.
In respect of the allegations made against Mr Cortes pursuant to the SD Act, I have found that the conduct alleged did not occur. Even if the conduct was found to have occurred, it is again difficult to discern on the present evidence how it could be said that Bing Lee was vicariously liable for it, by reference to the provisions of the SD Act.
The allegations against Mr Musa have a slightly different character because the Court has accepted that he made the Viagra statement, but found that it did not contravene s 28B of the SD Act. However, even if the making of the Viagra statement was found to be conduct of a sexual nature, it is again not established on the evidence that Bing Lee is vicariously liable for it.
Alleged failure to act
As has already been addressed above, the allegation of having made complaints to Bing Lee about sex discrimination and harassment which was specifically pleaded (being only the second Cortes allegation) is not made out: see [177] to [181] above. There is no allegation pleaded, nor any evidence, to specifically support a contention that Ms Meshram sought to raise the first or third Cortes allegations with Bing Lee.
In terms of the Musa allegation, as was noted at [213] above there is also no evidence[150] to support that the making of the Viagra statement was brought to the attention of anyone at Bing Lee, prior to Ms Meshram making a complaint to the AHRC.
[150] Nor is it pleaded
By reference to Mr Ng’s evidence at [300] above, there is nothing arising from Ms Meshram’s general complaint to him about being disliked which appears to arise under the SD Act either. Having otherwise accepted Mr Ng’s evidence above complaints-handling, there is no reason to think that if Ms Meshram had made a complaint about the Cortes allegations or the Viagra statement with Mr Ng, that the allegation would have been taken seriously and investigated. In relation to the Musa allegation I am satisfied on the evidence before me that even if Mr Musa’s conduct in the making of the Viagra statement was conduct of a sexual nature within the meaning of s 28B of the SD Act (by reference to the definition of sexual harassment in s 28A of the SD Act) that Bing Lee took all reasonable steps to prevent him from doing acts of the kind referred to in that paragraph.
In any event, on the evidence before the Court, there is nothing to support the contention that Ms Meshram was subjected to a detriment within the meaning of ss 14(2)(c) or (d) of the SD Act either by:
(a)failing (let alone “repeatedly failing”)[151] to act on complaints about sex discrimination and/or harassment;
(b)treating her less favourably;[152] or
(c)pressuring her to resign or constructively dismissing her following/by reason of her complaints.[153]
[151] Further Amended Application at [5(n)(i)]
[152] Further Amended Application at [5(n)(iii)]
[153] Further Amended Application at [5(n)(ii)] and see [296] above
Accordingly, [5(n)] of the Further Amended Application is not made out.
To the extent that Ms Meshram alleges that Bing Lee failed to act on her complaints as alleged by [5(n)] of the Further Amended Application because of her gender, then, having found that [5(n)] fails at a factual level, such allegation must also fail. Rather it was Ms Meshram who construed the conduct of Bing Lee as being on the basis that, as she contended in opening submissions, “a female is weak”.[154] However, there was no evidence adduced by Ms Meshram to seek to make good her claims (or to ground the aforementioned belief) other than to adamantly assert that women were in the minority at the OG store. As has been detailed above at [90], the evidence from all the management and staff members who gave evidence, other than Ms Meshram, was a that the OG store had an approximately equal number of male and female employees in its workforce, with day-to-day fluctuations depending on the roster. Having accepted this, there is no other probative evidence that Ms Meshram was treated less favourably, or that the actions or any failures to act by Bing Lee, even if somehow the [5(n)] allegations were otherwise established, were because of her sex. Accordingly [5(o)] of the Further Amended Application must also be dismissed.
[154] Transcript 13 March 2023 at T30.16 to T30.24
Allegation that AHRC complaint presaged
In relation to the newly alleged incident whereby Ms Meshram claims she foreshadowed her AHRC complaint to Mr Iacono, then insofar as this relates to allegations made under the SD Act, I repeat the findings made at [311] to [313] above and find that the incident did not occur, and is a recent invention.
Conclusion
On balance, Ms Meshram has wholly failed to establish that Bing Lee contravened either ss 5 or 14 of the SD Act.
PUBLIC INTEREST LITIGATION
Prior to concluding, there remains one issue to address in order to set the parameters for the remaining conduct of the proceedings.
In the course of Ms Meshram’s opening submissions, at a juncture at which it appeared that her potential costs exposure in these proceedings began to resonate, she contended that even if unsuccessful, she would not be exposed to an adverse costs order because the claims brought by her constitute “public interest litigation”.
The question of costs remains for determination and no applications have yet been made. Ordinarily it would be in the course of considering any application for costs that this question might arise to counter the ordinary rule that costs ought follow the event. However, to the extent that Ms Meshram contends that any costs application in this proceeding would be entirely foreclosed by virtue of her public interest contention, it is convenient to address the issue now.
The parties were given the opportunity to address this issue in their closing submissions.
Legislation
Section 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) provides as follows:
214 Costs
(1) This section does not apply to:
(a) family law or child support proceedings; or
(b) proceedings in relation to a matter arising under:
(i) the Fair Work Act 2009; or
(ii) section 14, 15 or 16 of the Public Interest Disclosure Act 2013.
Note 1: Paragraph (a)—see section 117 of the Family Law Act 1975 in relation to family law or child support proceedings.
Note 2: Subparagraph (b)(i)—see section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act.
Note 3: Subparagraph (b)(ii)—see section 18 of the Public Interest Disclosure Act 2013 for proceedings in relation to matters arising under section 14, 15 or 16 of that Act.
(2) The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.
Note: For further provision about the award of costs, see Division 4 of Part 6 and paragraphs 192(4)(d) and (e).
That section is in relevantly identical terms to s 43 of the Federal Court Act 1976 (Cth) about which the following was said in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 (Ruddock) per Black CJ and French J (as his Honour then was) at [10]:
It speaks of a judge having “jurisdiction” to award costs in all proceedings before the court. No doubt this is to be regarded as a reference to power in aid of jurisdiction rather than a grant of jurisdiction in the sense in which that term is used in Ch III of the Constitution. The power of the court so conferred is not fettered by any stated legislative presumption about the manner of its exercise. That is consistent with the long standing authority of the House of Lords in Donald Campbell & Co Ltd v Pollak [1927] AC 732 that “the Court has an absolute and unfettered discretion to award or not to award [costs]”: per Viscount Cave LC; Viscount Dunedin, Lord Phillimore and Lord Carson agreeing (at 811). Like all discretions however, it must be exercised judicially and not against the successful party except for some reason connected with the case.
Consideration
Contrary to Ms Meshram’s contention, the mere fact that a case is brought in the human rights jurisdiction of this Court does not, in and of itself, hold the unsuccessful party/ies safe from a costs order.
Firstly, neither of the statutes under which Ms Meshram brought her claims contains within them a provision to that effect. It was open to the Parliament when conferring jurisdiction in respect of the RD Act and the SD Act to make special costs provisions (for example like those in s 570 of the Fair Work Act 2009 (Cth) (FW Act)) such that costs liability would only be enlivened in certain circumstances (for example where the proceeding were instituted vexatiously or without reasonable cause). The absence of any such provisions in the RD Act and SD Act has the effect that the usual principles should be considered as applying: see Fetherson v Peninsula Health (No 2) (2004) 137 FCR 262 (Fetherson) at [9] per Heerey J. Ms Meshram did not bring any claims under the FW Act.
In Fetherson (supra) the Federal Court considered a contention that the human rights jurisdiction of this Court[155] was usually considered to be a no cost jurisdiction, in support of which contention reliance was placed on the decision of Raphael FM (as his Honour then was) in Tadawan v State of South Australia [2001] FMCA 25 at [62] that:
The [Federal Magistrates] Court has accepted that these matters were normally considered to be ‘no cost matters’ as evidenced by the practice of State Tribunals and the fact that there was no power in HREOC to award costs.
[155] Specifically its predecessor, the Federal Magistrates Court
That contention was said in Fetherson (at [6] per Heerey J) to have been:
firmly rejected within the Federal Magistrates Court itself. In Ball v Morgan [2001] FMCA 127 McInnis FM said at [83]:
The suggestion that human rights matters are normally to be considered as ‘no costs’ matters is therefore in my opinion misconceived and cannot be regarded as an appropriate legal principle to be applied in human rights applications.
Heerey J went on in Fetherson at [7] to [8] to find as follow:
Single judges of the Federal Court have proceeded to deal with costs on a basis which plainly recognises that the Court has power to award costs and, generally speaking, they should be ordered in favour of the successful party, although discretionary factors may lead to a different result: Physical Disability Council of New South Wales v Sydney City Council[1999] FCA 815, Tate v Rafin[2000] FCA 1582 at [71].
The general rule is that a wholly successful defendant should receive his or her costs unless good reason is shown to the contrary: Milne v Attorney-General (Tas) (1956) 95 CLR 460 at 477. As Dawson J said in Latudis v Casey (1990) 170 CLR 534 at 557, the discretion as to costs remains absolute and unfettered but it is to be exercised judicially, that is to say
… not by reference to irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.
There being no default proposition that human rights proceedings are held safe from costs, the question of whether or not there is some public interest aspect to the litigation which would result in an otherwise successful party being denied their costs (or as is contended for by Ms Meshram, that the Court would not even entertain such an application), is within the discretion conferred on the Court in relation to costs.
There are no prescribed factors which go towards establishing whether or not proceedings can be considered to have been brought in the public interest. There is also caution to be exercised in looking to other cases for analogy: see Fetherson (supra) at [12]. However, there are factors which seem to regularly inform whether or not a case is brought in the public interest to a sufficient degree so as to warrant departure from the general principle that costs follow the event.
While it can be accepted that human rights cases within the jurisdiction of this Court may involve aspects of public interest, not all do. In the present case, I am not satisfied that there is any basis upon which to conclude that the proceedings were brought in the public interest such that the Court would decline to hear any application for costs on the basis that those costs ought not follow the event.
The reasons for that conclusion include that:
(a)Ms Meshram has been wholly unsuccessful in establishing her claims, the converse of which is that the respondents have been wholly successful;
(b)these proceedings have raised no novel and/or important questions of law or statutory interpretation in respect of racial or sex discrimination, nor sexual harassment. The proceedings involved only the application of the legislation and existing case law to the facts of the present case once found;
(c)relevantly in respect of those findings, the allegations themselves were not established;
(d)the relief sought by the proceedings was solely by, and for the benefit of, Ms Meshram, including financial gain; and
(e)Ms Meshram is the sole applicant in the case. The proceedings and their subject matter were not brought by Ms Meshram as the representative for any particular group or category/ies of persons including Indians, women, or a combination of both.
I am not satisfied that these proceedings can, or should, be construed as anything other than a personal action on Ms Meshram’s part.
In all the circumstances of this case, it is not one which constitutes public interest litigation for the purposes of any consequential costs argument, such that the argument itself should be foreclosed. I will make orders to the effect that any costs applications be made and prepared for hearing in an efficient way.
CONCLUSION
Ms Meshram has wholly failed to establish the contraventions alleged by the Further Amended Application, and it must be dismissed. I will so order.
I will hear the parties as to costs, including of the interlocutory judgment,[156] on the basis established by reference to [328] to [343] above.
[156] See [9] above
I certify that the preceding three hundred and forty-six (346) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 31 August 2023
SCHEDULE OF PARTIES
SYG 2309 of 2021 Respondents
Fourth Respondent:
MARIO IACONO
Fifth Respondent:
RICHARD CORTES
Sixth Respondent:
CLAUDIO MUSA
Seventh Respondent:
MING TRANG
Eighth Respondent:
MARIAN MIRZA
Ninth Respondent:
KEN ZHUANG
Tenth Respondent:
FATEEN KHAN
Eleventh Respondent:
KYM PRENDERGAST
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