NGUYEN and FREDERICK - [2006] WASAT 14

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: NGUYEN and FREDERICK [2006] WASAT 14

MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS M FADJIAR (SESSIONAL MEMBER)
PROF C MULVEY (SESSIONAL MEMBER)

HEARD: 21 AND 22 NOVEMBER 2005

DELIVERED : 25 JANUARY 2006

FILE NO/S: EO 115 of 2005

BETWEEN: VAN THI THU NGUYEN
Applicant
AND
DAVID FREDERICK
Respondent

Catchwords:

Discrimination - Sexual harassment - Victimisation - Tribunal not satisfied applicant's claim made out

Legislation:

Equal Opportunity Act 1984 (WA) s24, s 24(4), s 67, s 93(1)(b), s 161

Result:

Application dismissed
No order as to costs

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr T Borgeest

Solicitors:

Applicant: Self-represented
Respondent: Slater and Gordon

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR
Sharma v Legal Aid (Qld) (2002) 115 IR

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant claimed that she was sexually harassed by the respondent while at work. She further claimed that she was victimised when she complained about his conduct. The respondent denied the claims.
The Tribunal was mindful that the applicant represented herself at the hearing and gave most of her oral evidence through an interpreter. Even allowing for these matters, however, it found that the cumulative effect of the questions raised by her evidence was such that it was not satisfied that she had made out her case.

Background

The applicant, Van Thi Thu Nguyen, claims that she was sexually harassed at work by the respondent, David Frederick, contrary to s 24(4) of the Equal Opportunity Act 1984 (WA) (the Act). She further claims that she was victimised contrary to s 67 of the Act. Mr Frederick denies the allegations.
By a written complaint dated 30 December 2003, Ms Nguyen complained to the Commissioner for Equal Opportunity that she had been unlawfully discriminated against on the grounds of sex and sexual harassment in the area of employment; further that she had been victimised for complaining about her treatment. At the time of the alleged discrimination and victimisation, Ms Nguyen was employed full-time as a meat packer by Coles Supermarkets Pty Ltd (Coles) in their Maylands store; Mr Frederick was the manager of the meat department.
On 24 March 2005, after attempts at conciliation were unsuccessful, the Commissioner referred the complaint to the Tribunal pursuant to s 93(1)(b) of the Act.
Ms Nguyen's complaint to the Commissioner was made against Mr Frederick as first respondent, and against Coles as second respondent by reason of s 161 of the Act.
Ms Nguyen's complaint against both respondents was listed for hearing before the Tribunal on 23, 24 and 25 August 2005. Shortly before then, the complaint against Coles was settled on undisclosed terms; the complaint against Mr Frederick remained on foot. Mr Frederick then sought an adjournment of the hearing on the basis that he had proposed to rely on evidence that he anticipated would be led by Coles, and he now required further time to prepare his case. The Tribunal granted an adjournment to 21 and 22 November 2005.
It was agreed at the hearing that the Tribunal would hear evidence on, and determine first, the question of liability; if it found in favour of Ms Nguyen, it would then hear evidence and submissions as to compensation. For the reasons set out below, the Tribunal is not satisfied, on the evidence before it, that Ms Nguyen has made out her complaint. It is therefore not necessary to deal with the question of compensation.

Relevant legislation

Relevant sections of the Act are set out below.
24. Sexual harassment in employment
(1)It is unlawful for a person to harass sexually -
(a)an employee of that or any other person; or
(b)a person who is seeking employment by that or any other person.
(2)It is unlawful for a person to harass sexually -
(a)a commission agent or contract worker of that person;
(b)a commission agent or contract worker of a person of whom the first-mentioned person is a commission agent or contract worker; or
(c)a person who is seeking to become a commission agent or contract worker of the first-mentioned person or of a person of whom the first-mentioned person is a commission agent or contract worker.
(3)A person shall, for the purposes of this section, be taken to harass sexually another person if the first‑mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and -
(a)the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person's employment or work or possible employment or possible work; or
(b)as a result of the other person's rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's employment or work or possible employment or possible work.
(4)A reference in subsection (3) to conduct of a sexual nature in relation to a person includes a reference to the making, to or in the presence of, a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing.
67. Victimisation
(1)It is unlawful for a person (in this section referred to as the 'victimiser') to subject, or threaten to subject, another person (in this subsection referred to as the 'person victimised') to any detriment on the ground that the person victimised -
(a)has made, or proposes to make, a complaint under this Act;
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act;
(c)has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under this Act;
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act;
(e)has reasonably asserted, or proposes to assert, any rights of the person victimised or the rights of any other person under this Act; or
(f)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II, IIAA, IIA, IIB, III, IV, IVA or IVB,
or on the ground that the victimiser believes that the person victimised has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).
(2)Subsection (1)(f) does not apply if it is proved that the allegation was false and was not made in good faith.
(3)Subject to subsection (2), the application or continued application of subsection (1) in a particular case shall not be affected by -
(a)the failure of the person victimised to do any proposed act or thing referred to in any of the paragraphs of subsection (1); or
(b)the withdrawal, failure to pursue, or determination of any complaint, proceeding or allegation under this Act.

Claims and evidence

At the hearing on 21 and 22 November 2005, Ms Nguyen represented herself. Mr Frederick was represented by Mr Borgeest of Slater and Gordon. Ms Nguyen gave evidence, mostly through a Vietnamese interpreter, but also in English. She did not call any witnesses. Mr Frederick provided a written witness statement and gave oral evidence. Ms Nadia Burgess, Human Resource Adviser in the State office of Coles, also provided a written witness statement and gave oral evidence. At the request of the Tribunal, oral evidence was given by Mr Vincenzo Fabio, Store Manager at Coles, Maylands, at the material time, and he also provided a written witness statement.
Ms Nguyen started work with Coles in January 2003. She worked part-time in the Mosman Park store for a short period then transferred to the Claremont store, where more hours were available, and from there to the Inglewood store where she worked full‑time for several months. She then transferred to the Maylands store where she started full‑time work as a meat packer on 17 November 2003. At that time Mr Frederick was the manager of the meat department.

Claims concerning harassment

In written submissions to the Commissioner of Equal Opportunity and the Tribunal, and in oral evidence, Ms Nguyen claims that, from her second day at work, Mr Frederick made suggestive, sexual gestures, including licking his lips and rolling his eyes in a suggestive way, making comments and asking whether she would fall in love with him. She says he "scolded" her about aspects of her work which had not been completed but, when she asked him for instructions, he smiled at her, again rolling his eyes and licking his lips, and flirting in a sexual manner. She says he continued in the same manner the following day.
Ms Nguyen says that, on the afternoon of Thursday, 20 November 2003, while she was in the meat processing area, she felt a hand between her legs from behind; she felt shocked and, when she turned around, Mr Frederick was close behind her. One other person was present in the meat room at the time but, Ms Nguyen says, he did not see what happened because he had his head down at the time, cutting meat.
Ms Nguyen told the Tribunal that she felt "horrible pain" between her legs, a "terrible pain … like there was a finger twisting from the outside". Under cross‑examination she said the pain lasted "a few days".
Ms Nguyen claims that Mr Frederick subsequently continued to make suggestive comments and gestures and to reprimand her about her work, picking on her, raising his voice, shouting at her and threatening to sack her, and continuing to ask whether she had fallen in love with him. She maintains that he was angry with her, not because of her work, but because she refused to cooperate with his advances.
The evidence about what happened next, and in what sequence, was at times conflicting: witnesses were at odds as to what took place at which meeting and whether some discussions took place at all. In some cases this may be attributable to the time since these events took place and is not in our view significant; in other cases the differences raise questions about Ms Nguyen's evidence in particular.
Mr Frederick says that, from Ms Nguyen's first day at work at Maylands, he was concerned about the quality of her work. He says that two other employees reported to him in the first week that she was uncooperative and that her work was poor; in particular, she was slow and did not take instructions. He says that their observations were consistent with his own, and that he reported his concerns to Mr Fabio and asked him to speak to Ms Nguyen. Mr Fabio supported Mr Frederick in this: as far as he could recall, some time around the end of Ms Nguyen's first week, he became aware of concerns about her work performance.
Mr Fabio says that, around this time, he met informally with Ms Nguyen to discuss her performance; Mr Frederick and Ms Dorothy Simmonds, a union representative, were present. He says they talked about the standard expected of a meat packer; he conveyed to her others' observations about her work, and made suggestions for improvement. No record was kept of the meeting and the date it occurred is not known, other than it was early in her employment. Ms Nguyen denies that this discussion took place.
It is common ground that, during her second week, Ms Nguyen requested a transfer to another store. Her request was declined because she had only just started at Maylands and, Mr Fabio says, because he would not transfer an employee whose performance was of concern. Ms Nguyen then requested a transfer to another department within the Maylands store. Before this request could be acted on, events intervened; Ms Nguyen went on sick leave and did not return to the Maylands store.

Meeting on 28 November 2003

It is also common ground that, on 28 November, Mr Fabio called Ms Nguyen to a meeting at which her application for a transfer was discussed. Ms Simmonds was present from the outset. Ms Nguyen says that Mr Fabio told her she was a good worker and was needed at the Maylands store and could not be transferred; she told him she wanted to transfer to be closer to home but he did not believe her as Bassendean was in fact further than Maylands from her home. She says Mr Fabio said to her words to the effect that something was wrong; if she would not tell him what it was then he would not approve her request for a transfer. Mr Fabio maintains that this discussion took place at a later meeting on 11 December. In any event, Ms Nguyen maintains there was no discussion of her work performance at this meeting.

Meeting on 11 December 2003

On 11 December a meeting was held in Mr Fabio's office to discuss Ms Nguyen's work performance. Ms Nguyen maintains that, other than critical comments made by Mr Frederick, there was no discussion of any sort about her performance before this meeting.
Ms Nguyen claims that Ms Simmonds came to her in the afternoon of 11 December and said she was to attend a meeting in Mr Fabio's office immediately; she was to stop what she was doing and go straight away. She maintains that she did not know what the meeting was about; when she arrived in Mr Fabio's office, Mr Frederick and a representative of the meatworkers' union were present. Ms Simmonds remained for the meeting.
Mr Fabio's evidence is that, on the previous day, 10 December, having formed the view based on discussions with Mr Frederick and others that Ms Nguyen's performance had not improved, he told Ms Nguyen he would need to speak to her formally the following day and he would arrange for a union representative to be present.
Mr Fabio says that, at about 4 pm ‑ 4.30 pm on 10 December, Ms Simmonds approached him and told him that two staff members had reported to her what Ms Nguyen had told them earlier that afternoon; he told Ms Simmonds he would inform Mr Da Silva, an official of the meat workers union, and the matter would be dealt with at the meeting the following day.
Mr Fabio says that, before the meeting started, he asked Ms Simmonds to clarify with Ms Nguyen exactly how she said Mr Frederick had touched her; Ms Simmonds did so and reported that Ms Nguyen had demonstrated someone putting their hands between her legs from behind. At the meeting, Mr Fabio says, he discussed Ms Nguyen's performance and then asked whether there was anything else she wanted him to know; she said there was not. When he put to her the allegation Ms Simmonds said she had made, she agreed it had happened and said Mr Frederick had touched her between her legs. Mr Fabio asked why she had originally told Ms Simmonds that he had touched her on the bottom. Ms Nguyen maintained she had said it was between her legs. Mr Fabio says he then asked her whether she would have raised the complaint if she had received approval to transfer to Bassendean; she said she would not.
It is not in dispute that a meeting took place in Mr Fabio's office on 11 December to discuss Ms Nguyen's work performance. A document headed "Employee Counselling Interview", dated 11 December 2005, records briefly what were considered the unsatisfactory aspects of Ms Nguyen's work and a plan for improvement. It records the interview as a "First written warning" and notes the matter was to be reviewed on 11 January 2004. It also refers to a "verbal warning" given on 28 November. It notes that Ms Nguyen did not want to sign the document. In oral evidence Ms Nguyen told the Tribunal she did not wish to sign because of the bad things it said about her. She denied there had been any discussion with Mr Fabio of her performance before this meeting. In particular, she denied there had been any such discussion at the meeting on 28 November.
At some point during, or immediately after, this meeting, Ms Nguyen disclosed to Mr Fabio the conduct of Mr Frederick now complained of. There is some dispute about the sequence of events and who was present at various points in the meeting, but it is not in our view significant.

Investigation by Coles of Ms Nguyen's complaint

At this point Mr Fabio decided he should refer Ms Nguyen's complaint to the company's human resources department in accordance with the usual complaint management procedures. On 12 December 2003, having been asked by Mr Fabio to document her claims, Ms Nguyen first made a handwritten statement and then, on the same day, a typewritten statement adding to and clarifying the handwritten statement. The Tribunal notes that neither of Ms Nguyen's statements makes reference to being "counselled" about her work before the meeting on 11 December. Mr Fabio also obtained written statements from Suzanne Johns and Vivian Lam, the women with whom Ms Nguyen discussed Mr Frederick's conduct on 10 December. Mr Fabio also prepared a written statement.
The Tribunal has before it the statement from Ms Johns. It documents a conversation Ms Johns says she and another worker, Ms Lam, had with Ms Nguyen on 10 December in which Ms Nguyen told them about Mr Frederick's conduct generally, including that he had touched her on her "left butt cheek" and that she was fearful she would lose her job if she complained. Ms Johns states that she and Ms Lam talked between themselves and agreed they should tell someone; they went upstairs and told Ms Simmonds. An undated statement by Ms Lam records the same conversation but in less detail.
Following the 11 December meeting, a formal investigation was commenced by Coles. Ms Nadia Burgess, State Human Resource Adviser for Coles, gave written and oral evidence about her investigation. On 16 December, she visited the Maylands store and discussed Ms Nguyen's allegations with Mr Frederick; he denied them. On 19 December she and Ms Kay Goodwin, also a State Human Resource Adviser, met with Ms Nguyen. Also present were Ms Mai Nguyen, a friend of Ms Nguyen's who acted as an interpreter, and Mr Simon Nguyen, a representative of the Vietnamese community. Neither is related to Ms Nguyen.
According to Ms Burgess, at this meeting Ms Nguyen said, through Mai Nguyen, that she had an appointment with a doctor the following day because she was still experiencing pain on account of Mr Frederick's assault. Asked by Ms Burgess what she meant, Mai Nguyen explained that Ms Nguyen had said that Mr Frederick "penetrated her in the back passage" with his finger. At this point Ms Burgess decided that the complaint was more serious and quite different from what she understood she was to investigate, and she terminated the interview. She advised Ms Nguyen that the matter would be referred to Coles' Melbourne office and that she should obtain a report from her doctor and report the matter to the police.
There was some conflict in the evidence about who suggested Ms Nguyen should see a doctor and report the matter to the police. Ms Nguyen said that, even though she was still feeling pain from the assault, she would not have seen a doctor but Mai Nguyen advised her to do so, and to report the matter to the police. Ms Burgess gave evidence that she advised Ms Nguyen, in view of the seriousness of her complaint, to see her doctor and the police.
The Tribunal has before it a report dated 29 February 2004 from Dr Sang, a registered psychologist, to Ms Nguyen's general practitioner, Dr Pham. Dr Sang records in general terms Ms Nguyen's account of events and gives his opinion that she had "PTSD‑like symptoms which are bound up with those of a major depressive disorder and a general anxiety disorder". The Tribunal also has before it a certificate dated 9 August 2004 from S Febbo, consultant psychiatrist at Royal Perth Hospital, where Ms Nguyen was a patient and unable to work for two weeks. It also has certificates from Dr Chin for the period 29 December 2003 to 2 January 2004, and from Dr Koek from 30 December 2003 to 13 January 2004. Neither states the reason for Ms Nguyen's incapacity. A certificate dated 13 January 2004 from Dr Koek states that Ms Nguyen is "still suffering from stress", and needed "to attend a workplace meeting, perhaps with an advocate, to negotiate an acceptable workplace".

Ms Nguyen gave oral evidence that she reported the incident to the Highgate police shortly after the meeting on 19 December. She told the Tribunal that she did not make a formal report; she just wanted the police to know that she had made a report.
Ms Nguyen already had a medical certificate from an appointment with her doctor on 18 December. She handed this in at the meeting on 19 December and immediately afterwards went on sick leave and did not work at the Maylands store again.
Ms Burgess gave evidence that she subsequently tried to arrange a meeting with Ms Nguyen to advise her of the progress of her investigation and to follow up the medical and police report she had recommended. For reasons which are not entirely clear from the evidence, the meeting did not happen and, once Ms Nguyen made her complaint to the Commissioner for Equal Opportunity, Ms Burgess did not pursue the investigation.

Mr Fabio's evidence about how Ms Nguyen came to work at the Maylands store

Mr Fabio gave evidence about how Ms Nguyen came to work in the Maylands store. When he received her application, he rang the then manager of the Inglewood store to ask about her work. The manager told him that there had been "some difficulties" with her work in that there had been "personality clashes" with other employees. Mr Fabio responded that that sort of thing happened from time to time and did not necessarily reflect on a worker's performance, and he was prepared to give Ms Nguyen a go.
Mr Fabio told the Tribunal that he was "peed off" when later, in the course of investigating Ms Nguyen's complaint, statements were taken from three employees at the Inglewood store indicating concerns about her work and "many ongoing disputes" between her and others including allegations that she had bullied and threatened other workers. These statements are untested and can carry little weight. However, when asked about them, Ms Nguyen agreed that there had been some problems with other staff at the Inglewood store; she attributed these to her working harder than others and knowing her job. It is not in dispute that there were tensions between her and other workers.
In response to questions from the Tribunal, Mr Fabio stated that he had not had reason to counsel Mr Frederick about his performance, and had not received a complaint of any sort about his performance or conduct, in the three years he had worked with him at the Maylands store.

Evidence supporting Ms Nguyen's claims

Ms Nguyen provided a number of written character and employment references. While some speak very well of her, they go largely to her honesty and competence as a worker generally, rather than to the matters before the Tribunal.
Ms Nguyen told the Tribunal that, on 20 November, she told the man with whom she lives what had happened that day but she did not go into detail because he did not approve of her working in that position in the first place. Although he provided a brief written statement to the Commissioner for Equal Opportunity supporting Ms Nguyen's claims, he was not called to give evidence and did not provide any form of statement to the Tribunal. Ms Nguyen advised the Tribunal at the start of the hearing that he was not available because he was not well.
Neither Ms Johns nor Ms Lam was called to give evidence. At an earlier directions hearing, Ms Nguyen advised she wished to call both as they were "independent"; she was trying to locate them but could not recall their names. Coles subsequently provided her with Ms Johns' and Ms Lam's names but advised they no longer worked for Coles and Coles no longer had their addresses. At that time the Tribunal impressed on Ms Nguyen the importance of making inquiries herself if she wanted those witnesses to appear and speak for her. At the hearing, however, Ms Nguyen conceded that she had made no attempt to contact either witness, even by a search of the telephone book.
Ms Nguyen provided the Commissioner for Equal Opportunity with a letter dated 24 January 2004 from Faye Spencer, a fellow worker at Coles. She told the Tribunal that she had told Ms Spencer about what happened on 20 November when Ms Spencer visited her at home on 28 November. Ms Spencer's letter gives her email and work addresses, and her phone and fax numbers at work. Ms Spencer supports and encourages Ms Nguyen to stand up for herself and make her complaint. However, nothing in the letter suggests that Ms Spencer can independently verify the facts as claimed and it does not in itself support Ms Nguyen's claims. Ms Spencer was not called to give evidence.

Ms Nguyen's verbal accounts of the alleged incident on 20 November 2003

In response to Ms Nguyen's claims, Mr Frederick points to what he says are significant inconsistencies in her account which make it unreliable. Her various accounts are set out below.
In her handwritten statement made on 12 December at Mr Fabio's request, Ms Nguyen wrote in English, without assistance, an account of what she says happened on 20 November. In it she states:
"… I was packing meat, I was shocking very uncomfortable between my legs further than my pump (someone was touching me) … I was jumping and turn around I saw Dave behind me …"
(In oral evidence Ms Nguyen explained that the word "pump" was a reference to "a woman's private parts".)
On the same day Ms Nguyen typed a statement to correct what she described as some inaccuracies in her handwritten statement attributable to the fact that she did not have her diary with her when writing it. She described the incident on 20 November as:
" … I was packing meat in the processing area, I was fondled between the legs from behind, I jumped from shock …"
Ms Nguyen told the Tribunal that a neighbour, Chris, helped her to write this second statement; they used a dictionary when necessary to clarify particular words. She says that she told Chris in English that "he touched my bum and did this [indicating a twisting motion with her fingers]". Chris suggested that the word "fondle" was appropriate. Ms Nguyen told the Tribunal that she disagreed with this, that "fondle" is a word for lovers whereas Mr Frederick had hurt her, so it was not the right word. In any event, it was left in her statement. She used the same description in a document dated 11 December 2003 which was a form of diary of events which she says happened at the Maylands store.
At the meeting on 19 December with Ms Burgess and Ms Goodwin, Ms Mai Nguyen, acting as interpreter, stated that Ms Nguyen had an appointment with a doctor the following day because she was still experiencing pain on account of Mr Frederick's assault. It was at this point that Mai Nguyen used the expression "penetrated her in the back passage" with his finger. In oral evidence Ms Nguyen maintained that she did not use this expression and did not indicate exactly where she had been touched. She agreed, however, that she had said she was still feeling pain from the assault.
In her written complaint to the Commissioner for Equal Opportunity, dated 30 December 2003, Ms Nguyen states that on 20 November 2003 Mr Frederick "fondled [her] between the legs from behind" and flirted with her using his eyes and his tongue; on another occasion he came so close to her she was frightened. A Statement of Allegations and Circumstances, subsequently prepared by a Commission officer, recounts this incident in the same terms.
In oral evidence before the Tribunal Ms Nguyen stated in English that she was concentrating on packing meat when she felt "pain between [her] legs"; she felt a finger; it was very uncomfortable. Through the interpreter she stated that she "suddenly felt a pain at the spot of [her] vagina"; a "terrible pain like there was a finger twisting from the outside". She was wearing trousers at the time and she felt the pain through them.
Under cross‑examination Ms Nguyen stated that she told her neighbour when he was writing the statement for her, about the "horrible pain". (The words she used in earlier evidence were interpreted as "terrible pain" but we do not think this difference is significant). There is no reference to the pain in her written statement.

Claims concerning victimisation

Ms Nguyen's complaint to the Commissioner for Equal Opportunity was made on a Commission form which asked what type of discrimination she had experienced. Ms Nguyen ticked that she had experienced sexual harassment and victimisation. It does not appear, however, that she pressed this claim. The Commissioner's letter referring the complaint to the Tribunal refers only to the sexual harassment claim.
Ms Nguyen did not submit to the Tribunal any evidence in support of this claim. While she claimed that Mr Frederick "victimised" her when she did not respond to his advances, there is no evidence to suggest that she conveyed any intention to complain, or complained, until the meeting on 11 December. The statements of Ms Johns and Ms Lam indicate they advised Ms Nguyen to tell someone about her complaint. She in fact told Ms Simmonds on 10 December. However, there is no evidence of conduct by anyone to her detriment. Mr Fabio in fact acceded to her request for a transfer to another section but events intervened before that could happen.

Findings and reasons

To make out the claim of sexual harassment, Ms Nguyen must establish that Mr Frederick made an unwelcome sexual advance or request for sexual favours, or engaged in unwelcome conduct of a sexual nature; further that she had reasonable grounds for believing that rejecting his advance or objecting to his conduct would disadvantage her in her employment, or that she was in fact disadvantaged.
In the claim of victimisation she must establish that she was subjected to, or threatened with, detriment on the grounds that she made, or proposed to make, a complaint about that conduct.
It is for Ms Nguyen to make out her case on the balance of probabilities. The standard of proof is the Briginshaw test:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved." (Briginshaw v Briginshaw(1938) 60 CLR 336 at 362)."
The consequences flowing from a particular finding may be grave for both an applicant and a respondent. For a respondent it is a serious matter, if it is not true, to be found to have committed what amounts to a sexual assault from which prosecution may follow. Equally, if an incident in fact happened as alleged, a finding that it is not substantiated may be devastating to a complainant.
There are commonly no witnesses to sexual harassment. Findings frequently turn on the credibility and reliability of the parties' evidence and, where there is no direct evidence, the Tribunal must draw inferences from what is before it. It must:
"… consider the weight which is to be given to the united force of all the circumstances put together. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone … It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied on are established as facts." (Sharma v Legal Aid (Qld) (2002) 115 IR 91 at 98).
In some respects Mr Frederick's case is straightforward: he simply denies all of the allegations, leaving it to Ms Nguyen to bring evidence to establish her claim.
For the reasons set out below, we are not satisfied, on the evidence before us, that Ms Nguyen has made out her case against the respondent.
We are mindful that Ms Nguyen represented herself at the hearing of this application and that English is not her first language. We do not underestimate the difficulties a self-represented applicant faces and the misunderstandings that can easily occur through differences in language. However, we are satisfied that Ms Nguyen understood the proceedings and that she had every opportunity to present her case.
We have considered what the respondent says are the significant inconsistencies in Ms Nguyen's account of what she says happened on 20 November. We recognise that latitude has to be given in these circumstances and that care must be taken not to attach too much weight to particular words or expressions used at particular times. However, Ms Nguyen demonstrated a reasonably sound grasp of English. Although at times she required the assistance of the interpreter, she was able at the hearing to understand a good deal including declining the assistance of the interpreter while Mr Borgeest was making closing submissions.
Ms Nguyen was adamant before the Tribunal that "fondle", the word suggested by her neighbour, was not appropriate for what happened. We are satisfied that she understood the significance of the word but it nevertheless appears repeatedly in her accounts. She also understood the import of "penetrated in the back passage" sufficiently to maintain she did not use (in Vietnamese) such words during the 19 December meeting. Ms Burgess' evidence is that she did use those words – or at least words that were interpreted in that way. We accept Ms Burgess' evidence on this point, and the question arises as to why Ms Nguyen did not seek at the time to correct the statement attributed to her.
Further, Ms Nguyen did not mention the "terrible" or "horrible" pain, lasting over a month, until the hearing itself. The Tribunal questioned her closely about this to be sure she was not trying to convey emotional pain at what had happened, but she was clear that the pain was physical. The severity of the physical pain she claimed at the hearing is difficult to reconcile with the absence of any reference to it in her written statements.
We do not think that some of the differences in Ms Nguyen's account are as significant as the respondent claims. Nevertheless, these matters raise questions as to the reliability about her account.
We accept the evidence of Mr Frederick and Mr Fabio that they had concerns about Ms Nguyen's work performance, and that Mr Fabio spoke to her twice before the formal meeting on 11 December. It is possible that Ms Nguyen did not interpret the first discussion as reflecting on her performance. But, taking into account the reference in the record of the 11 December meeting to a verbal warning on 28 November, we are satisfied that her performance was raised by Mr Fabio on that date. We do not accept Ms Nguyen's assertion that there was no discussion of her performance before the 11 December meeting.
We do not accept that Ms Nguyen learned about the meeting on 11 December just before it happened as she claims. We accept Mr Fabio's evidence that he told her about it the previous day. It would have been consistent with how he appeared, in giving oral evidence, to approach problems with his staff. Moreover, he had arranged for a number of people to be at the meeting, and nothing was to be gained by not informing Ms Nguyen in advance.
The written statements of Ms Johns and Ms Lam are not tested but we find no reason to doubt them. What is not known, however, is when the conversation they document occurred. Ms Nguyen says it was before Mr Fabio told her about the meeting the following day to discuss her performance. Mr Fabio could not recall clearly when he talked to Ms Nguyen.
Ms Nguyen did not call either Ms Johns or Ms Lam to give evidence. Neither could have given direct evidence of what happened on 20 November; their statements document something Ms Nguyen told them, rather than anything they witnessed themselves. But it was Ms Nguyen who insisted, at the earlier directions hearing, that they were important, independent witnesses. Her failure to make any real attempt to locate and call them is difficult to reconcile with her earlier position.
It appears to us that Ms Nguyen has sought to minimise the role of any concerns about her work performance in her dealings with Mr Fabio and Mr Frederick. Whatever the reason, it raises questions about the reliability of her evidence.
We consider it open to the Tribunal to find that Mr Fabio told Ms Nguyen of the meeting before she spoke to Ms Johns and Ms Lam. This gives rise to the possibility that she made her claims to Ms Johns and Ms Lam in order to divert attention from her own performance. We do not say that that is what happened but we consider it to be a finding open to us on the evidence before us.
Just because Ms Nguyen did not reveal the alleged harassment until just before, and at, a meeting about her work performance does not mean it did not happen. But we have to consider the possibility, put by the respondent, that her claim was contrived to divert attention from her own work.
We are satisfied that there were complaints, or at least negative comments, about Ms Nguyen's work performance from other staff at Maylands. Mr Fabio learned of them independently of Mr Frederick as well as from him. Had they come to him only from Mr Frederick, they might be consistent with Ms Nguyen's claim that Mr Frederick treated her unfairly. But Mr Fabio verified them independently.
Ms Nguyen does not dispute that there were tensions in her previous workplace. Not surprisingly, she did not advert to these until they were put to her. However, they raise the possibility that, at least in her previous workplace, Ms Nguyen was not always easy to work with, and they raise the possibility of similar difficulties while at Coles Maylands.
Ms Nguyen's evidence was that the first she knew of the meeting on 11 December 2003 was when Ms Simmons came to her that afternoon, telling her she had to stop immediately what she was doing and go to a meeting in Mr Fabio's office. Mr Fabio's evidence was that he advised Ms Nguyen the previous day, on the 10 December 2003, that she was to attend the meeting the following day. On this point we prefer the evidence of Mr Fabio. He gave evidence before the Tribunal about procedures for dealing with performance problems. We find him to be a credible witness. This part of the evidence is important because, if the first that Ms Nguyen knew of the meeting on the 11 December 2003 was that day, her disclosure to Ms Johns and Ms Lam the previous day was unrelated to the anticipated meeting. However, if Mr Fabio is correct, then when Ms Nguyen told Ms Johns and Ms Lam what Mr Frederick had done, she possibly already knew about the meeting the following day. It remains a possibility that Ms Nguyen told them about the incident to divert attention from her performance.
As well as the incident which she says happened on 20 November 2003, Ms Nguyen has complained that Mr Frederick's conduct amounted to sexual harassment when he rolled his eyes and made suggestive gestures and comments to her. However she did not press her complaint about Mr Frederick's conduct beyond the incident she says happened on 20 November. Having observed him giving evidence, we find it quite possible that his manner towards her was intimidating and unhelpful. However, again taking into account all of the evidence, including Mr Fabio's evidence about Mr Frederick's performance and conduct over three years, we are not satisfied that this complaint has been made out.
Any one of the doubts raised by Ms Nguyen's evidence would not of themselves necessarily undermine the reliability of her evidence generally. But the cumulative effect of those doubts leads us to the conclusion that, taking into account all of the evidence before us, we are not satisfied, on balance, that Ms Nguyen has made out her complaint.

Victimisation

We are not satisfied that the claim of victimisation is supported by the evidence. We are satisfied that Mr Frederick spoke to Ms Nguyen about her performance on her first day. As already noted, from observing his manner during the hearing, we find it quite possible that he was unhelpful to her and his manner intimidating. However, she has said she did not know everything about the new job and was used to doing things differently. We are satisfied that Mr Fabio had reason to speak to her about her work well before any suggestion of a complaint about his conduct and that he was not affected by it in dealing with her performance.

It was Ms Nguyen's evidence that she first disclosed formally her complaint about Mr Frederick's conduct at the meeting on 11 December 2003. She says she raised her complaint informally with Ms Johns and Ms Lam on the previous day and their written statements substantiate this claim. However, the evidence before us does not support a finding that the meeting of 28 November 2003 or the 11 December 2003, or any disciplinary proceedings taken, post dated her complaint of Mr Frederick's conduct or were a response to them. In fact, Mr Fabio had acceded to her request for a transfer to another section in the store. Even were we to find the complaint of sexual harassment made out we could not be satisfied, on the evidence before us, that the claim of victimisation is made out.

Conclusion

The Tribunal can only deal with the evidence before it. On the evidence before us, we are not satisfied that Ms Nguyen has made out her complaint of either sexual harassment or victimisation. We dismiss her application. We make no order as to costs.
The Tribunal orders that:
1.The application is dismissed
2.There is no order as to costs

I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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