Nacu v Alano

[2015] NSWCATAD 37

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Nacu v Alano [2015] NSWCATAD 37
Hearing dates:	4 and 5 November 2014
Decision date:	10 March 2015
Before:	D Patten, Principal Member J Schwager, General Member M Murray, General Member
Decision:	1. Application Dismissed 2. No Order as to Costs
Catchwords:	Alleged sexual harassment – failure to prove
Legislation Cited:	Anti-Discrimination Act 1977 No 48
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336
Category:	Principal judgment
Parties:	Melanie Nacu (Applicant) Isagani Alano (Respondent)
Representation:	Counsel: M Neville (Applicant) A Singh (Respondent) Solicitor: Women’s Legal Services NSW (Applicant) I Alano (Respondent in person)
File Number(s):	131115

Judgment

1. The applicant asserts that she suffered sexual harassment by the respondent contrary to s22A of the Anti-Discrimination Act (the Act). Her points of claim, dated 26 February 2014, relevantly alleged:

1. The Applicant and the Respondent are both employed as sterilising technicians in the Sterilisation Services Unit of St Vincent’s Private Hospital (the Hospital).

2. In February 2013, the Respondent approached the Applicant while they were working. During the conversation, the Respondent made reference to an “anaconda”. The Respondent refers to his penis as his “anaconda”.

3. In April 2013, the Respondent slapped the Applicant on her back near her shoulder blade. The Respondent did this between two and three times a week. This conduct continued until June 2013.

4. In May 2013, the Respondent approached the Applicant while they were working. The Respondent said, “Your vagina is sick”. This comment was made in the presence of co-worker Emma Atebelo.

5. Between February 2013 and June 2013, the Respondent engaged in the following acts at work:

1. Said to the Applicant that his anaconda is big; and

2. Said to the Applicant that his penis was getting hard; and

3. Asked the Applicant if she would like to see his penis; and

4. Touched his penis to the outside of his pants and made motions consistent with masturbation in front of the Applicant; and

5. Pretended to open the zipper of his pants in front of the Applicant; and

6. Engaged in dancing of an erotic style in front of the Applicant.

6. At times, the comments made by the Respondent were in English and at other times in Tagalog. Tagalog is the first language of both the Applicant and the Respondent.

7. The Applicant was offended, humiliated and intimidated by the conduct described at 2, 3, 4 and 5.

2. There is, in our view, no doubt that the matters alleged, if true, were capable of constituting sexual harassment contrary to the Act. However, they were completely denied by the respondent and the Tribunal is thus presented with a factual issue which it is required to resolve. The applicant has the onus of proof on the balance of probabilities.

3. The principal witness in the applicant’s case was Ms Nacu herself. She deposed to her employment in the Sterilisation Services Unit of St Vincent’s Private Hospital which commenced on 7 April 2010 and is continuing. She also deposed to the fact that the respondent has been employed in the same capacity for two years. Although they usually worked different shifts up to September 2013 there was a cross- over period when they had contact between shifts in a tea room. Her affidavit, affirmed on 26 February 2014, recounts the conduct complained of:

1. The first time the Respondent mentioned the word ‘anaconda’ to me was in February 2013. At first I thought he was talking to me about a pet snake.

1. 12. He said: “Melanie, do you know I have an anaconda, a big one?”

2. I said: “OK”

3. He said: “My anaconda, it’s really big and alive”.

4. I said: “What are you really talking about?”

5. He said: “this one” and pointed at his penis.

6. I said: “Yuck. You’re silly. That’s gross.”

7. I felt shocked and offended that the Respondent talked about his penis in the workplace.

2. The following day, I spoke with my workmate Maria Matos.

I said: “Maria, do you know that Isagani’s ‘anaconda’ is his penis?”

She said: “Yes, he is always talking and joking abut his ‘anaconda’ in the workplace. He does it all the time.”

3. Following my conversation with Maria, I decided that I would try to just treat the conversation with the Respondent the day before as a joke. Even though I tried to put my feelings aside and treat it as a joke, I was still shocked and uncomfortable that he talked about his penis to me.

4. Since the first conversation, the Respondent continued to refer to his penis while we were at work. These conversations would sometimes occur in the presence of myself and other colleagues, sometimes in the presence of myself and my colleague Emma Atebelo and sometimes comments were made to me when I was alone. Generally, he spoke in English when my other colleagues were around and he would frequently refer to his ‘anaconda’ during these discussions. When I was alone or when my colleague Emma Atebelo was present, he would talk in Tagalog about his penis and how it was big and hard and alive.

5. These comments made me feel very uncomfortable.

6. On a number of occasions between April 2013 and June 2013, the Respondent approached me at work during my lunch break. He spoke to me in Tagalog:

7. He said: “My penis is getting big and hard. Would you like to see it? I’ll show you.”

8. I said: “Stop talking to me.”

9. These comments made me feel very uncomfortable and offended. I felt stressed whenever the Respondent came anywhere near me because I feared what he would do or say to me.

10. In April 2013, the Respondent slapped me on the back near my shoulder blade. While it was not a hard slap and it didn’t cause me pain, I didn’t like him doing it.

11. I said: “What’s the matter with you?”

12. He said: “Challenge me to a fist fight?”

13. My workmate Emma Atebelo was there when this conversation took place.

14. After this first incident, the Respondent slapped me on the back two to three times a week. He would then hold his hands in front of his face in a fist like manner as though he wanted to have a fist fight. Even though the slaps did not cause me pain, they made me feel uncomfortable and intimidated. I repeatedly told the Respondent to stop but he kept slapping me on the back. This conduct continued until June 2013.

15. In May 2013, our teams had a number of meetings with Vincent Cox. Before each of the meetings, the Respondent walked around the room moving his hands over the outside of his pants as though he was masturbating. He also said in Tagalog, “My penis is getting hard.” Of my colleagues, only the Respondent, Emma Atebelo and I speak Tagalog. Some of my other workmates laughed at him, but I thought it was disgusting and I was very embarrassed to be in the same room.’

16. Later in May 2013, I was off work sick. The next day when I returned to work, I saw the Respondent and Emma Atebelo. We had a conversation in a mixture of English and Tagalog. We call it, Taglish:

17. I said: “Kamusta. (Hi, how are you). I wasn’t here yesterday, I was sick.”

18. He said (in Tagalog): “Your vagina was sick.”

19. I said: “How dare you.”

20. Emma said (in Tagalog): “She’s upset” and then giggled.

21. I walked away. I was embarrassed, humiliated and angry.

22. I regularly saw the Respondent dance in the workplace. When he danced, he would turn the radio up to full volume. When he danced he pretended to grab his crotch and would thrust his hips. I describe the style of dancing as an erotic style. I don’t think that style of dancing is appropriate in the workplace.

23. One day, before a meeting with Vincent Cox in May 2013, the Respondent turned up the volume on the radio and went to the middle of the meeting area. He started dancing to the music. He was grabbing at his penis as though he was masturbating and pretending to unzip his pants. The then turned to me and spoke to me in Tagalog:

24. He said: “My penis is getting hard.”

25. I said (in English): “If you show it to me, I will cut it off.”

26. I felt personally targeted by the Respondent because no one else in the department, except Emma, understood what he said to me.

27. I did not tell anyone at work about the sexual harassment and bullying because the Respondent was my work colleague and I didn’t want to make an issue out of it that would make my life at work more difficult.

4. The applicant also deposed in her affidavit, affirmed on 26 February 2014, to a particular incident which she said occurred on 26 June 2013. The allegation does not involve sexual harassment but is relevant generally to the relationship between the parties:

26. On 26 June 2013, the Respondent and I had an altercation at work. I was working the afternoon shift and the Respondent was working the morning shift. I asked the Respondent if I could have his table during the one and half hours both teams worked at the same time because his was the only available table to use. The Respondent said no to me. Approximately 10 minutes later, I asked him once again if I could use his table and he said no. Some time later, I found another table to work at. Soon after, I went over to work on the computer near his table and the Respondent said to me that I could now use his table. I ignored him. The Respondent asked me why I would not talk to him and why I was upset and I said to him to stop talking to me. He continued to ask me questions. I was feeling harassed and intimidated by the Respondent but I kept trying to ignore him. Then the Respondent said to me “I give you favours all the time.” When the Respondent said this to me, I yelled at the Respondent and I swore at him.

27. My behaviour that day was completely out of character. I believe that I responded like this because I was feeling so anxious, embarrassed and humiliated by his action towards me over the previous months and this, combined with my frustration over his behaviour towards me that day, led me to lose my temper.

28. On 28 June 2013, I spoke with Mr Vincent Cox about the incident on 26 June 2013. I told Mr Cox about the Respondent’s actions on 26 June 2013. I also told Mr Cox about how the Respondent kept slapping me on the back and that even though I had told him to stop, he continued to do it. I told him that I thought the Respondent was bullying me. As our conversation ended, Mr Cox said to me, “I won’t cover for you.” I don’t know what he meant by that comment.

5. So far as the evidence relates the applicant made no complaint about sexual harassment until July 2013 although, as indicated above, she says that she mentioned it inferentially to Marie Matos, other incidents occurred in the presence of Emma Atabelo and much of the conduct complained of was conducted in the presence and/or hearing of all staff members who happened to be there. On 19 July 2013, however, the applicant made a formal complaint to the Anti-Discrimination Board. In that complaint she particularised the conduct complained of (which she said was known to her manager Vincent Cox) as follows:

• Feb 2013 – Gani Alano said to me my anaconda (penis) is hard is doing erection. Do yo [sic] want me to show it to you?

• Since that time every time he talk to me he says words like

- anaconda is big

- he is touching his penis, pretending to be masturbating

- pretending to open his zipper

• He is constantly trying to show me his penis. He said do you want to touch it

• In May 2013 he said to me “your vagina is sick”

• From about April 2013, he has been hitting me on my shoulder like wanting to challenge me to a fight. Vincent Cox was there for the monthly meeting.

6. The applicant was cross-examined at some length by Mr Singh who appeared for the respondent. She told him that the respondent’s references to anaconda as meaning his penis commenced in February 2013 and that his practice of slapping her on the shoulder commenced about March. She denied that references to anaconda meaning penis in the hospital work place was a standing joke, although she conceded some co-workers used the expression.

7. She told Mr Singh in relation to the incident referred to in para 24 of her affidavit that several staff members called on the respondent to dance and that he did so for 45 seconds. She disagreed with the proposition that during the dance the respondent did nothing inappropriate. She said there were a number of other meetings where the respondent would dance during breaks.

8. Mr Singh asked the applicant about previous occasions on which she had make complaints about staff members and staff members made complaints about her. She agreed that one concerned Ms Jackie Gievido whose complaint that the applicant swore at her was upheld while her counter-complaint was dismissed. On another occasion her complaint against a Ms Olga Coelio was also dismissed. In December 2010 a complaint by a person named Pilai about her bad language was upheld while her counter-claim was dismissed.

9. The applicant agreed that on 28 August 2011 she made a complaint against her supervisor Marie Natalinade Sylva. This was dismissed as was her complaint against Tany Pavlavitch but her complaint against Ivan Garcia was upheld.

10. It was put to the applicant that whenever there was a problem she made a complaint and that she had mood swings. She replied ‘no, only in a situation where I am angry’.

11. There was an internal investigation in relation to the subject matter of the complaint before us conducted in August/September 2013. In September 2013 the investigator concluded her report with these findings:

Based on the above investigation, I have concluded that the only allegation of substance is that the word ‘anaconda’ is used inappropriately in the department which may at times include a sexual connotation.

Although, I have found that Mr Alano does dance in the department it is not ‘erotic’ as alleged.

Based on the above, the only potential breach of the Hospital’s Bullying and Harassment Policy would be the use of inappropriate language in the workplace. Given that the language appears to be used not only by Mr Alano, but other staff members of the TSSU team (even if it is in a joking manner), I do believe that the breach warrants the Hospital taking further steps to educate its employees in the TSSU department regarding appropriate language and behaviour in the workplace.

I also propose to counsel Mr Alano separately in relation to appropriate language for the workplace.

12. Of course the applicant’s history in relation to complaints both by and against her tends to undermine her credibility as, for the most part, complaints by her have been dismissed and complaints against her upheld. It does not necessarily mean that we must or should find against her but, in our view the evidence of her prior behaviour sounds a warning note and suggests that we should scrutinise her evidence carefully and be cautious about accepting it in the absence of corroboration or corroborative circumstances.

13. The only other witness who gave evidence in the applicant’s case was a Clinical Psychologist, Ms Reagan Adams, who first saw the applicant on 8 August 2013 upon referral by her general practitioner.

14. Ms Adams, in a report dated 10 March 2014, described the applicant’s presentation in these terms:

At the time of the initial assessment, Miss Nacu presented with distress and concern in regards to anxiety and depressive symptomology. This appeared to be due to Miss Nacu’s difficulty adjusting to recent work-related incidents. She reported depressed mood, anger, increased stress and marked emotional lability in response to feeling personally targeted in her workplace. In addition Miss Nacu reported difficulty sleeping and increased worry as a result being unable to put these incidents behind her. She also reported marked emotional reactivity to the events, marked avoidance of triggers, hyperarousal and hypervigilance on a daily basis. In addition to this, Miss Nacu reported an increase in a number of health related concerns such as weight loss, acid reflux and nausea which was attributed by Miss Nacu as being exacerbated by her workplace interpersonal stressors brought on by Mr. Isagani Alano.

An assessment of her current adjustment revealed that Miss Nacu’s anxiety has a moderate to significant impact on her life and she described her mood as relatively unstable. At the time of the assessment, Miss Nacu’s subjective report of her mood was consistent with her affect in session and her scores on the DASS-21 which suggested extremely severe depression and anxiety and severe stress. As such, Miss Nacu presented with features consistent with DSM IV diagnosis of Moderate Adjustment Disorder with Anxious and Depressed mood (acute <6 months). In addition, Miss Nacu reported a generally unsupportive relationship with managers at work and a lack of any additional support networks.

15. Although the report refers to the respondent by name it does not refer to “workplace interpersonal stressors” as having a sexual connotation. In cross-examination she could not recall being told of any specific incident involving the respondent. Indeed, as we understood her evidence, the principal complaint made to her by the applicant concerned an allegation of being targeted by her manager and unfairly treated.

16. In the applicant’s case there was, in our opinion, no evidence which tended to support her claim of illegal sexual harassment by the respondent. But a number of witnesses gave evidence in the respondent’s case and we need to refer to that evidence.

17. The respondent swore an affidavit on 8 May 2014. He denied that the conversation related in para 12 of the applicant’s affidavit took place and denied ever pointing to his penis in the workplace. He said that many staff members, including the applicant, used the word anaconda to refer to penises “but always in a joking manner”.

18. He deposed to one conversation:

18. I recall one incident between me and the applicant. Other staff members were also present. During this incident:

The applicant said: “Show me your anaconda. Do you have anything there?”

She then picked up a magnifying glass and said: “You got a small one there.”

We all laughed.

19. In relation to other allegations the respondent deposed:

19. I refer to paragraph 15 of the affidavit of the applicant. I have never spoken to the applicant about my penis or my penis being big, hard or alive in Tagalog or in English.

20. I refer to paragraph 17 of the affidavit of the applicant. The conversations deposed therein never took place. It would be very rare for me to have contact with the applicant during her lunch break.

21. I refer to paragraph 19 of the affidavit of the applicant. At no time have I slapped the applicant. The conversation deposed in this paragraph did not happen.

22. I refer to paragraph 20 of the affidavit of the applicant. At no time have I slapped the applicant. I remember one occasion when I took a boxing stance in a joking way and the applicant also took a similar stance and laughed about it.

23. I refer to paragraph 21 of the affidavit of the applicant. A staff meeting is held with Vincent Cox once a month where all staff from both shifts are usually present. I do not recall more than one staff meeting taking place in May 2013.

24. At no time have I moved my hands over the outside of my pants as though I was masturbating. I have never said in Tagalog or English the words or words similar to, "My penis is getting hard" at the workplace.

25. I refer to paragraph 22 of the affidavit of the applicant. The conversation deposed therein did not take place whether in English, Tagalog or Taglish.

26. I refer to paragraph 23 of the affidavit of the applicant. I do dance at the workplace and I do turn up the volume of the radio. However, while dancing i have never pretended to grab my crotch or thrust my hips or do any "erotic" style of dancing.

27. I refer to paragraph 24 of the affidavit of the applicant. I do remember dancing before a staff meeting after a staff member had requested me to dance. At no time during this or any other dance did I grab at my penis as though I was masturbating or pretend to unzip my pants. I do not wear pants with zips at the workplace as we are required to wear theatre clothing at work. I have never said in Tagalog or English words to the effect that my penis was getting hard. The applicant has never said to me words to the effect, "If you show it to me, I will cut it off."

28. I refer to paragraph 26 of the affidavit of the applicant. I recall an incident taking place at the workplace between me and the applicant. A lot of staff from both shifts were present. It was around 1:30pm to 2pm. I was working on my assembly table. The applicant approached me and had a conversation with me, during which:

She said: "Can I use your table?"

I said: "No, I'm working on it."

She walked away.

29. Some time later, I had a further conversation with her, during which:

I said: "Are you OK?"

I said: "Have I done something wrong?

She yelled: "Fuck you. Talk to your dick."

While speaking, she was raising her middle finger.

I said politely: "Why are you saying like that?"

She yelled: "Fuck you. Your head is in your dick. Talk to your dick."

I said: " Why are you swearing at me?"

She kept repeating what she was saying.

Natalina Silva said: "You guys stop."

I stopped talking, but the applicant kept on yelling and swearing at me.

20. Cross-examined by Ms Neville, counsel for the applicant, the respondent said that so far as he was aware he had a good relationship with the applicant until the incident on 26 June 2013. He admitted that he told the internal investigator Ms Mathen that the applicant was trying to destroy him but denied that he was aware of any motivation for this.

21. He admitted that he used the word anaconda in the workplace but denied that he specifically used it to, or in the applicant’s presence. He said “the word was used by all staff not necessarily referring to anything”. He said there were joking references to an anaconda about once a fortnight. He told Ms Neville that he could not remember when the incident occurred referred to in para 18 of his affidavit where the applicant mentioned a magnifying glass.

22. Throughout the cross-examination the respondent strenuously maintained his denial of anything which on his part could have amounted to sexual harassment of the applicant. He also denied that he ever touched the applicant in a sexual way or indeed was guilty of any other deliberate physical contact.

23. A number of witnesses gave evidence in support of the respondent’s case and were cross-examined. Not all of the witnesses had provided an affidavit , one of those being Amanda Maya.

24. Although Ms Maya, a member of the respondent’s team, denied that she ever witnessed or became aware of inappropriate behaviour by the respondent her testimony was so vague and her recollection of specific events so poor that we do not regard her as a witness upon whose testimony we can place any reliance. She was obviously a reluctant witness.

25. Mr Reazul Islam swore an affidavit on 30 April 2014. He said that he has been a team leader since 2004 or 2005 and that both applicant and respondent have worked under him. He said that he had heard staff using the word anaconda but “always when they are joking with each other”. He denied that he has ever witnessed or been aware of inappropriate sexual behaviour by the respondent in the work place.

26. Mr Islam said that he was present when the incident described in para 26 of the applicant’s affidavit occurred. He said that he overheard the applicant “yelling at the respondent” and using the words “fuck…ask your dick”.

27. He said that during the incident the respondent was speaking in normal tones saying “what happened to you. Why are you saying this?”

28. Challenged upon his evidence in cross-examination Mr Islam was very vague and seemed to have little recollection of the matters about which he was questioned. We think that little reliance can be placed upon his testimony.

29. Maria Matos swore an affidavit on 30 April 2014. Her evidence is important in that, according to the applicant, she had a conversation with Ms Matos the day following the day on which she says the respondent first behaved inappropriately towards her. Ms Matos deposed to having no recollection of the conversation. She also denied that she ever heard the respondent speak about his penis although she said “a number of staff at the unit have used the word ‘anaconda’ on occasions, but as a joke”.

30. She said that she had never seen the respondent slap the applicant or challenge her to a fight but once she observed “the applicant and the respondent both taking a boxing stance and dancing around. There was no touching and they were clearly joking with each other”.

31. Ms Matos said that she has seen the respondent dancing at the workplace but “I have never seen the respondent pretend to grab his crotch or thrust his hips. When dancing I have never seen him make any sexual or erotic gestures”.

32. Ms Matos was unshaken in cross-examination upon the substance of her evidence maintaining that she never saw or became aware of any conduct by the respondent which could be categorised as sexual harassment.

33. Another co-worker who gave evidence was Emma Atabelo mentioned several times in the applicant’s evidence as a person who overheard or witnessed inappropriate language or behaviour by the respondent.

34. Ms Atabelo swore an affidavit on 8 May 2014. She deposed that “all staff at the unit have used the word ‘anaconda’…but always in a joke way”. Otherwise she denied hearing or being aware of any other allegation of sexual misconduct by the respondent. In relation to para 22 of the applicant’s affidavit she said:

20. I refer to paragraph 22 of the affidavit of the applicant. I usually speak in English in the workplace. I was not present in any such conversation. I have never heard the respondent saying in Tagalog or English, “You [sic] vagina is sick.” I have never said that the applicant was upset or giggled about the applicant.

35. However, Ms Atabelo did say that she was present at the incident on 26 June 2013: “The respondent was talking in a soft tone and trying to calm down the applicant. The applicant would not listen. I remember her saying repeatedly ‘fuck’ and ‘the answer is dick’”.

36. To many of the questions asked of her in cross-examination, Ms Atabelo answered that she could not remember, although she continued to deny all allegations of sexual misconduct on the part of the respondent. We formed the opinion that she was not doing her best to assist the Tribunal and that her evidence could not be regarded as reliable.

37. In the same category was the evidence of Maria Silva, team leader in the unit of the applicant’s team. She denied observing, hearing, or becoming aware of any conduct by the respondent which could amount to sexual harassment. She conceded that all staff at the unit, including the applicant, used the work anaconda as a joke.

38. In paragraph 16 of her affidavit, sworn 8 May 2014, Ms Silva said:

16. I recall the applicant and the respondent having conversations about “anaconda” on several occasions. On one occasion the applicant, while pointing to the respondent’s crotch area said to him, ”Let me see it. It’s very little”.

39. Ms Silva also deposed to what was apparently the incident on 26 June 2013. She recalled the applicant yelling to the respondent “fuck off talk to your dick”. she reported the incident to Mr Cox.

40. The concluding paragraphs of her affidavit indicated that she had never been aware of the respondent becoming involved in an argument with the applicant other than the one on 26 June 2013 and that the applicant had never complained to her about the respondent.

41. In cross-examination however, Ms Silva was, we thought, excessively vague and demonstrated poor recollection; thereby undermining the reliability of her testimony.

42. Although we have questioned the reliability of some witnesses who gave evidence in the respondent’s case it does not follow that the opposite of what they said is true. Indeed, unreliable evidence has little or no probative value either for or against a matter in issue.

43. A more impressive witness, in our opinion, was Olga Coelho to whom, as a supervisor, the team leaders reported. She testified that all staff in the unit, including the applicant, used the word anaconda but she never heard the respondent speak about his penis or its state. She deposed to a conversation when she saw the applicant point to the respondent’s crotch and say “[Y]ouv’e got nothing there. Show us your anaconda”. She said that the respondent did nothing in response.

44. Ms Coelho observed the respondent dancing in the workplace but said that he did not make erotic moves or gestures to his crotch. She said that the applicant had never complained to her of any misconduct by the respondent.

45. Ms Coelho was quite forthright in cross-examination but not shaken in her testimony that she never saw or became aware of inappropriate conduct by the respondent whom she described as “a happy responsible helpful but very shy person”. We accept Ms Coelho as a credible witness who did her best to assist the Tribunal.

46. One further witness gave evidence in the respondent’s case namely Mr Vincent Cox, at relevant times the Nursing Manager of Sterilizing Services at St Vincent’s Private Hospital. He gave oral evidence (having not sworn an affidavit) by telephone from his home.

47. Mr Cox referred to an incident in November 2010. There was a complaint by Jacquie Toledo that the applicant swore at her. This complaint was upheld and the applicant was given a formal warning. Her cross-claim was dismissed. He said there was another incident in December 2010 involving a staff member and the applicant. The staff member’s complaint was upheld and the applicant given a ‘second warning’. Her cross-complaint was dismissed. The applicant made a further complaint about another staff member in August 2011 which was dismissed.

48. Following the incident on 26 June 2013, at which Mr Cox was not present, he called both the applicant and the respondent to his office. They each apologised to the other but subsequently there was an inquiry and he had occasion to interview the applicant again. She said in the course of the meeting “I’ve been good a long time, if he complains about me I’ll complain about him”.

49. He gave evidence of regular staff meetings where he spoke to staff members individually. He said that the applicant never raised any complaint about the respondent to him.

50. In April 2013 he said he conducted a performance review of the applicant. He said the review was very good with “no issues”.

51. He said he was present once at a meeting when the respondent was encouraged to dance during which “he swivelled his hips but nothing else”. No complaint was made to him about the dance. He first became aware of any complaint about the respondent’s conduct on 29 July 2013 when he was handed a letter and documents from the Anti-Discrimination Board.

52. In cross-examination Mr Cox agreed there was a culture of vexatious complaints but pointed out that they were not all made by the applicant. Other staff members made complaints which were dismissed. He could not recall whether he became concerned at the level of complaints.

53. Generally, in cross-examination, Mr Cox said he was never aware until July 2013 of any alleged inappropriate sexual behaviour by the respondent. Nor, until recently, had he heard that staff members used the word anaconda to refer to a penis.

54. We assessed Mr Cox as a credible and reliable witness doing his best to assist the Tribunal. We accept his evidence that he neither saw nor became aware of any allegations of sexual misconduct by the respondent until he received the papers from the Anti-Discrimination Board.

55. In her final submissions Ms Neville referred to the law as to sexual harassment. We accept those submissions as we regard it as self-evident that the conduct alleged by the applicant against the respondent amounted to sexual harassment contrary to s22A of the Act.

56. It is true, as Ms Neville submitted, that the applicant appeared to be an honest and straight forward witness doing her best to assist the Tribunal. We took a similar view of the evidence of the respondent despite Ms Neville’s criticism of him. He was perhaps less than forthcoming about his own use of the word anaconda as a reference to penis. Demeanour in the witness box is however, as we accept, a notoriously unreliable means of assessing the veracity of a witness.

57. It may be inferred, we think, from the evidence that the respondent was a popular colleague of his fellow staff members and the applicant rather less so. We were left with a suspicion that some of the respondent’s witnesses consciously or unconsciously tailored their evidence in order to protect him but this observation certainly does not apply to either Ms Coelho or Mr Cox.

58. This is a case in which we would have expected that, if true, at least some of the sexual behaviour alleged against the respondent would have come to the notice of Ms Coelho and Mr Cox. We refer particularly to the alleged erotic dancing and the complaint that the respondent frequently struck the applicant although not necessarily in a sexual way. These complaints apparently occurred over a period of several months. The absence of any evidence from either Ms Coelho or Mr Cox supporting the applicant, we think, casts grave doubt on her claims of harassment.

59. Although the standard of proof is upon the balance of probabilities, the charge of repeated sexual harassment in the workplace is a very serious allegation which must be decided in that light (Briginshaw v Briginshaw (1938) 60 CLR 336). In the face of the respondent’s denials and the absence of any evidence which supports the applicant’s version of events including evidence which we would have expected to be available we are not satisfied that the applicant has proved her allegations on the balance of probabilities. The application must therefore be dismissed.

60. Our present inclination is that there should be no order as to costs. If either party seeks a different order they may make submissions to the Registrar within 21 days. The other party has leave to reply within a further 14 days and thereafter the matter will be decided by the Tribunal on the papers.

ORDERS

1. Application is dismissed.

2. Subject to paragraph 60 above, no order as to costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 March 2015