SAUNDERS and DEPARTMENT OF EDUCATION AND TRAINING & WATT
[2008] WASAT 108
•19 MAY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: SAUNDERS and DEPARTMENT OF EDUCATION AND TRAINING & WATT [2008] WASAT 108
MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MS J HAWKINS (MEMBER)
PROF C MULVEY (SESSIONAL MEMBER)
HEARD: 3, 4 AND 5 DECEMBER 2007
DELIVERED : 19 MAY 2008
FILE NO/S: EOA 85 of 2006
BETWEEN: SHARON SAUNDERS
Applicant
AND
DEPARTMENT OF EDUCATION AND TRAINING
First RespondentDANIEL WATT
Second Respondent
Catchwords:
Equal opportunity - Allegations of sexual harassment - Briginshaw test - Lack of evidence to support allegations - Whether notes contemporaneous
Legislation:
Equal Opportunity Act 1984 (WA), s 24, s 89(1), s 90(2), s 161
Public Sector Management Act 1994 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr S Millman
First Respondent : Ms C Thatcher
Second Respondent : Mr S Kemp
Solicitors:
Applicant: Slater and Gordon
First Respondent : State Solicitor's Office
Second Respondent : Jackson McDonald
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Hardy v Kelly & Anor (1991) EOC 92-369 (unreported, Equal Opportunity Board of Victoria)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The State Administrative Tribunal dismissed complaints by the applicant of sexual harassment against the Department of Education and one employee, Mr Watt. The matter was referred to the Tribunal by the Commissioner for Equal Opportunity. This followed the dismissal of the complaints by the Commissioner as misconceived and lacking in substance.
Following a hearing, the Tribunal dismissed the complaints as it was not satisfied that the applicant had proven that sexual harassment had occurred on the basis of the applicable standard referred to in Briginshaw v Briginshaw (1938) 60 CLR 336.
As the complaint against its employee, Mr Watt, was dismissed, it followed that the complaint against the Department of Education was also dismissed.
Introduction
The applicant in these proceedings, Ms Sharon Saunders, lodged a complaint on 29 November 2005 with the Commissioner for Equal Opportunity (Commissioner) which asserted that she had suffered sexual harassment in the area of her employment contrary to s 24 of the Equal Opportunity Act 1984 (WA) (EO Act).
Some of the allegations made by Ms Saunders were lodged with the Commissioner out of time under the EO Act. The Commissioner accepted those allegations. The Commissioner was of the view that other allegations did not and could not constitute sexual harassment under the EO Act and after considering detailed submissions from Ms Saunders and her union representative, the Commissioner declined to accept those allegations.
Ms Saunders subsequently lodged an amended statement of allegations. The Commissioner investigated the allegations (including the out of time allegations) and on 15 September 2006 wrote to Ms Saunders advising her that she had dismissed Ms Saunders' complaint under s 89 of the EO Act as misconceived and lacking in substance.
On 3 October 2006, Ms Saunders required the Commissioner to refer her complaint to the Tribunal pursuant to s 90(2) of the EO Act. On 19 December 2006, the Commissioner referred Ms Saunders' complaint to the Tribunal, together with the Commissioner's report of her investigation into the complaint.
Ms Saunders' claims of sexual harassment were made under both s 24(3)(a) and s 24(3)(b) of the EO Act. However, in closing submissions, Ms Saunders' counsel informed the Tribunal (and the respondents) that the claim was based solely on s 24(3)(b) of the EO Act.
Ms Saunders' claim relates to her employment as a teacher at Singleton Primary School in 2004 and 2005. Ms Saunders alleges that, between 2004 and 2005, she was subjected to sexual harassment at her workplace, Singleton Primary School, by Mr Daniel Watt, who was at the time the deputy principal. She maintains that, in 2004, the alleged sexual relationship she had with Mr Watt was consensual. However, Ms Saunders alleges that at the commencement of 2005, she was no longer agreeable to continuing that alleged relationship. She claims that, due to her rejection of Mr Watt's alleged sexual advances, she failed in her application for a position with Singleton Primary School and therefore suffered a disadvantage.
Both Ms Saunders and Mr Watt were at the relevant times employed by the Director General Department of Education and Training (Department). Ms Saunders' allegations are denied by Mr Watt and the Department.
Ms Saunders is seeking damages from both Mr Watt and the Department, for pain and suffering only, as she was successful in subsequently obtaining a suitable and acceptable position with Waikiki Primary School which commenced in 2006 and which became permanent in 2007.
The allegations
Ms Saunders' claim
Ms Saunders' statement of issues, facts and contentions sets out various examples of unwelcome sexual advances and unwelcome requests for sexual favours and the engagement in unwelcome conduct of a sexual nature by Mr Watt to Ms Saunders, during her employment at Singleton Primary School in 2004 and 2005.
Although not set out in her statement of issues, facts and contentions, Ms Saunders alleges that, in 2004, Mr Watt propositioned her, asking her to have a sexual affair with him. She alleges that he enquired what it would take for her to have an affair with him ‑ to which she says she suggested that she would require a permanent position with Singleton Primary School. Ms Saunders alleges that as a result of her conceding to Mr Watt's requests for sexual favours during 2004, she secured a position with the school for 2005. In 2005, Ms Saunders applied for a permanent position at Singleton Primary School from 2006. Ms Saunders was advised on 1 November 2005 that she had been unsuccessful in her application for a permanent position with Singleton Primary School. She claims that application was unsuccessful due to her rejection in 2005 of Mr Watt's unwelcome sexual advances, unwelcome requests for sexual favours and unwelcome conduct of a sexual nature and because Mr Watt was on the selection panel that determined the outcome of the applications for positions for the 2006 year. Ms Saunders claims that she suffered a disadvantage under s 24(3)(b) of the EO Act and is therefore entitled to damages for pain and suffering as a result of being hurt, humiliated and embarrassed. During closing submissions Ms Saunders' counsel indicated that damages of $5000 would be appropriate.
Ms Saunders identifies three issues in her statement of issues, facts and contentions, which she says are relevant, as follows:
"1)Did Mr Daniel Watt, in his function as Deputy Principal, Singleton Primary School ‑ second respondent ‑ for the Director General of the Department of Education and Training (first respondent), and as Ms Sharon Saunders' manager, subject her to discrimination involving sexual harassment in employment within the definition of s 24(3) of the EO Act, and, if so, was such discrimination unlawful, pursuant to s 24(1), as alleged by the applicant?
2) If the alleged unlawful sexual harassment is substantiated, is the Respondent vicariously liable for the conduct of Mr Watt?
3)Additionally, if the alleged unlawful sexual harassment is substantiated, is Ms Saunders entitled to damages for personal detriment in the form of personal pain and hurt, and, additionally, professional humiliation as a teacher?"
Mr Watt and the Department's response
Mr Watt and the Department deny Ms Saunders' claims of sexual harassment. They maintain that Ms Saunders was not disadvantaged in any way in connection with her employment with the Department, as she was successful in obtaining a position with the Department at Waikiki Primary School, which commenced at the start of the 2006 school year.
Mr Watt's response
Mr Watt's response to Ms Saunders' allegations is essentially as follows:
(1)Ms Saunders was offered and accepted a temporary one year contact as a teacher in Year 3 commencing in January 2004;
(2)In or about August 2004, there were several positions available at Singleton Primary School for the 2005 school year;
(3)The selection panel for the available 2005 positions was run in the standard format according to the standard procedures specified by the Department, and Mr Ripp, Singleton Primary School principal, chaired the process and reported the outcome to staff;
(4)Ms Saunders' application was ranked 10th out of 11 applications;
(5)Ms Saunders became upset upon being informed she was unsuccessful for a 2005 position;
(6)However, in December 2004, Ms Saunders was offered a temporary position at Singleton Primary School on a 12 month contract for the 2005 school year;
(7)Mr Watt was Ms Saunders' line manager in 2004 and she required and requested considerable support and assistance in class management, more so than other teachers at Singleton Primary School;
(8)Mr Watt requested not to have Ms Saunders in his line management team in 2005;
(9)Mr Watt denies ever having propositioned Ms Saunders for sex or making remarks of a sexual nature to her;
(10)Mr Watt claims that Ms Saunders frequently made unsolicited and inappropriate remarks of a sexual nature to him and others at the school;
(11)Mr Watt denies he ever asked Ms Saunders to have an affair, nor ever made any suggestion or remarks to Ms Saunders regarding exchanging sex for a job at Singleton Primary School;
(12)Mr Watt received a telephone call on 1 November 2005 from Ms Saunders' partner, who indicated that Ms Saunders had received a position at Singleton Primary School because she had provided Mr Watt with sexual favours, but was not short-listed in 2005 for a 2006 position because she had stopped doing so; and
(13)Ms Saunders only commenced making comments to other teachers at the school about the alleged conduct of Mr Watt after being made aware she was unsuccessful in her application for a position in 2006.
The Department's response
The Department's response to Ms Saunders' statement of issues, facts and contentions is summarised as follows:
(1)Ms Saunders applied for a position in August 2003 in response to an advertisement for a number of teaching positions at Singleton Primary School;
(2)There were 24 applicants, and following an interview, Ms Saunders was ranked eighth and offered a twelve month fixed term position after clear vacancies had been filled and other applicants ranked above her had declined further offers;
(3)Ms Saunders' commenced her appointment on 29 January 2004 and ceased on 17 December 2004;
(4)In August 2004, Ms Saunders submitted an application for positions that became available at the school in 2005;
(5)A selection panel was established to deal with the applications and Ms Saunders was ranked 10th out of 11;
(6)All clear vacancies were filled and Ms Saunders was not offered a position; however, towards the end of term 4, three further 12 month fixed term positions became available, and after exhausting the applicants ranked above her, Ms Saunders was offered a position for 2005;
(7)Ms Saunders' position commenced on 27 January 2005 and ceased on 16 December 2005;
(8)Ms Saunders did not make any complaint to the Department at the relevant times in relation to the alleged conduct of Mr Watt and only first made a complaint after 1 November 2005;
(9)In October 2005, Ms Saunders submitted an application for one of the vacancies available with the school for the 2006 school year;
(10)The positions were determined by a selection panel which included Mr Watt;
(11)There were 45 applicants, 12 of whom were deemed competitive and were short-listed for an interview. Ms Saunders was not included in that 12;
(12)Ms Saunders was informed by the principal at a meeting on 1 November 2005 that her application had not been successful;
(13)On the evening of 1 November 2005, Mr Watt contacted Mr Ripp to complain that Ms Saunders' partner had made inappropriate contact with him;
(14)On 8 November 2005, Ms Saunders lodged a claim for breach of public sector standards which stated:
•the selection panel did not include an independent member from outside the school, thus enabling Mr Watt to influence other members not to give her an interview;
•feedback was not made available when sought from the panel chair; and
•the constitution of the panel was not impartial because it included Mr Watt with whom she had had "more than just a professional relationship".
In that application, Ms Saunders described herself "as the victim of a criminal offence having been perpetrated against [her]";
(15)The Department conducted its own investigation into Ms Saunders' claim by arranging for a completely new and independent panel to review a sample of the applications for the positions, including Ms Saunders' application, and a report of 1 December 2005 indicated the panel's conclusions were consistent with those of the original selection panel;
(16)The Department's Complaints Management Unit wrote to Ms Saunders on 25 November 2005 requesting particulars of her allegations concerning a criminal offence;
(17)Ms Saunders responded on 1 December 2005 advising the Department that she had lodged a complaint with the Equal Opportunity Commission and declined to provide the Department with details outside that process;
(18)Ms Saunders was successful in obtaining a teaching position with Waikiki Primary School for the 2006 school year and obtained a permanent position at that school in 2007;
(19)All of the Department's policies, procedures and guidelines concerning sexual harassment were available to Ms Saunders during 2004 and 2005;
(20)Based on the Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) standard, the Tribunal cannot be satisfied that Mr Watt engaged in any of the alleged conduct; in the alternative, if the alleged conduct occurred and was unwelcome, it did not result in Ms Saunders not being offered employment at Singleton Primary School for 2006; and the Department took all reasonable steps to prevent the alleged conduct occurring and is not therefore vicariously liable for it if it did occur.
Legislation
The sections of the EO Act that are relevant to the allegations are set out as follows:
"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;
…
(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. [emphasis added]
(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."
"161. Vicarious liability
(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 this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
(b)an act that is unlawful under this Act,
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 (a) or (b) of that subsection 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."
Evidence and material before the Tribunal
Ms Saunders' evidence
Ms Saunders' evidence comprised not only her oral testimony but also the following documents that were included in the Commissioner's report:
(a)a statutory declaration of 79 paragraphs dated 28 November 2005 (statutory declaration);
(b)a statement of 36 paragraphs plus background, dated 8 May 2006;
(c)responses dated 14 July 2006 to comments by Mr Bevan Ripp, principal, and by Mr Daniel Watt; and
(d)a bundle of documents referred to throughout as her anecdotal notes (anecdotal notes).
Ms Saunders confirmed that the statutory declaration was drafted by reference to the anecdotal notes. Her evidence also included a witness statement dated 21 November 2007 and a variety of other documents which formed part of the Commissioner's report. These documents included a medical report from Dr Hilton dated 28 February 2006.
Ms Saunders gave evidence that during 2004, Mr Watt would often engage in sexual talk with her. By August 2004, she had applied for one of the teaching positions for the 2005 school year and at or around that time she says Mr Watt made sexual advances to her, which culminated in him asking her whether she would consider having an affair with him. She alleges that part of that discussion involved Mr Watt asking her what she would want from him, to which she allegedly indicated she would require a permanent job. She alleges that subsequent to that conversation, Mr Watt started to ask her for sexual favours at school. She claims that sometimes she kissed him and sometimes she gave him oral sex at school. She maintains that in 2004 she willingly participated in granting Mr Watt sexual favours as she considered she had an agreement with Mr Watt that, in doing so, she would obtain a permanent teaching position with the school.
Ms Saunders says she applied in 2004 for a permanent position with Singleton Primary School and was interviewed on 14 September 2004. She was not successful in obtaining any position and discovered that her ranking was 10 out of 12. Ms Saunders alleged that as a result of this, she felt betrayed by Mr Watt. She says he explained to her that he had really tried to give her a job, but there was a panel and the other applications were stronger.
With respect to this outcome, Ms Saunders states at [38] and [39] of the statutory declaration as follows:
"[38]I felt betrayed as we had a deal and I was glad that I hadn't slept with him but felt bad that I had let him have some sexual favours when he didn't live up to his end of our deal. He kept telling me what a great teacher I am and how he was very upset with me for being angry with him. He then promised that he would keep fighting to make sure that I got a substantive position for next year.
[39]However, I got an end dated position for the 2005 school year, which was not announced until December 2004. I don't know now whether he did help me with an end dated position or whether I just got one as I was short listed and Mr Ripp went through the list until my name finally came up."
Ms Saunders goes on in the statutory declaration to allege that she was so upset that she rang one of the other teachers, Ms Rebecca Roberts, and told her about her arrangements with Mr Watt. She states in the statutory declaration that although Ms Roberts was shocked, she appeared incredulous that Mr Watt would do something like that. It was at that point that Ms Saunders says she realised that this would be the reaction of many people at the school and that people would not believe her.
She states in the statutory declaration that towards the end of 2004, Ms Roberts suggested that she seek counselling through Prime Counsellors. Ms Saunders took that advice and made an appointment with Prime in December 2004. She claims that at that visit she discussed the stresses that she had experienced with Mr Watt as well as other issues in her life.
Ms Saunders also maintains in the statutory declaration that, although Mr Watt had been annoyed with her in mid‑September, on or about 28 September 2004, he again started visiting her classroom enquiring whether he and Ms Saunders could start things up again. She alleges that on 29 October 2004, Mr Watt asked Ms Saunders to replace him at a school concert. Ms Saunders alleges that Mr Watt was unable to attend the concert at the start, but said he would attend the concert later in the evening. She says that when he arrived at the concert he begged her to stay. She alleges that she sat with him during the concert and that he said to her "… he'd been thinking he wanted to fuck me all night …".
Ms Saunders also refers to an incident that allegedly took place on 15 November 2004. This incident is referred to at [57] of the statutory declaration :
"On the 15th of November 2004, the staff at Singleton were organised into team building tribes and had a series of activities to perform. I was in Mr Watt's tribe and one of them involved something with stickytape. Mr Watt asked me to put the stickytape on his crotch. While I was carefully putting that on (in front of other tribe members), he reached down and touched my breasts again. I was shocked and pulled away and got angry with him and said to him:
'… Don't do that …' and he just said '… What? … What? …'. I did not talk to him for the rest of the day."
Ms Saunders alleges, at [58] of the statutory declaration, that on 16 November 2004, Mr Watt sent her a smiley face and a note so she would not be angry with him any more. She goes on, at [59], to allege that on 1 December 2004, she told Mr Watt that she had had enough of his behaviour and just wanted to be friends, to which he agreed. However, on 17 December 2004, the last day of school, during another tribal challenge, she alleges that Mr Watt once again grabbed her breasts in front of everyone.
Ms Saunders said that over the 2004/2005 Christmas break, she underwent counselling sessions and she was very depressed. She alleges that on the first day back at school in 2005, Mr Watt approached her and asked her to help him in the library storeroom. Once in there, she alleges that Mr Watt put his arms around her and wanted to have sexual favours again. Ms Saunders states, in the statutory declaration:
"[62]After my lonely holidays I guess I was a bit lonely and vunerable [sic] so I agreed and he asked me to give him oral and I started to but then we nearly got caught as Michelle Kelly walked into the library.
[63]I had to hide and while I was hiding I was overcome with disgust for myself that I had allowed Mr Watt to push me so low again. When Michelle left I told him I no longer wanted this and that I really didn't want to get into this again. He tried to talk me out of it, but I said no."
Ms Saunders maintains that despite this, Mr Watt continued to seek sexual favours from her in 2005, which she always resisted. By June 2005, Ms Saunders alleges that she was enquiring of Mr Watt (who at that time was acting principal at Singleton Primary School), as to the permanent positions available with the school for 2006. At [74] of the statutory declaration, she states:
"On the 28th June 2005, I was asking him if the jobs were online yet, as he was the one entrusted with putting the jobs online, as far as I knew. As Mr Watt was going to be the acting principal at the time on which the jobs at Singleton would be advertised and there was some question as to whether the principal, Mr Ripp, would be there to even do the interviews, Mr Watt replied that "… I may be heading the panel … [for the selection] … so you should consider giving me a bit …" to which I said "… surely, you're not going to pull that shit again …".
Ms Saunders alleges that on 16 August 2005, while she and Mr Watt were talking in the staff room, Mr Watt suddenly said "Do you want to have a shag? …" to which she allegedly said "… No. I'm getting plenty from my boyfriend".
Ms Saunders then alleges that on 12 September 2005, ([76] of the statutory declaration) when Mr Watt was still acting principal, he called her into his office regarding a parent telephone call concerning a complaint against her. She said Mr Watt gave her no specifics in respect of the complaint, and that she was upset and in tears, to which he said to her "… You know what would really help? … If you come around here and suck my cock …". Ms Saunders said that she was shocked and appalled and said that she could not believe that Mr Watt had said that.
Ms Saunders also alleges ([77] statutory declaration) that on or about 12 October 2005, while she was photocopying in the photocopier room, Mr Watt came in and said "he had something long and hard …" for her, to which she replied "… No thanks …". She alleges that Mr Watt then asked her what she was doing and she advised that she was photocopying her job application and Mr Watt suggested that if she wanted the job, she should give Mr Ripp a blow job. She says she gave Mr Watt a "disgusted look" and then he said "What about me then?" to which she says she replied "No … thanks …".
Ms Saunders then alleges in the statutory declaration ([78] and [79]) that on 2 November 2005, Mr Ripp called her at her home and during that conversation, she advised him that Mr Watt had sexually harassed her and that "not a week went by without receiving some sort of sexual harassment" from Mr Watt.
During examination‑in‑chief, Ms Saunders explained that she considered her application in 2005 for a permanent position at Singleton Primary School was unsuccessful because she rejected Mr Watt's sexual advances. She confirmed that she now has a permanent position with Waikiki Primary School.
The anecdotal notes include notations of alleged incidents between Ms Saunders and Mr Watt during 2004 and 2005. Ms Saunders explained that as a teacher, anecdotal notes are used to record behaviour and conversations with students. She said that she started making the notes about Mr Watt when he started behaving in the way he did, as she thought it was suspicious. She also referred, in examination‑in‑chief, to a document which was undated and had different handwriting, which stated as follows:
"Dan
What time and where on Thurs night?
Your house!
Whenever you feel ready!
Shaz" [Emphasis added].
Ms Saunders explained in her response to Mr Watt's claims to the Commissioner, that the highlighted handwritten writing is Mr Watt's. She also explained, in examination‑in‑chief, that the reference in her anecdotal notes on 16 November 2004 to the comments "He sent me a smiley to make things better. It didn't" was a reference to an email from Mr Watt to her dated 16 November 2004. A copy of that email was provided and stated "Keep smiling dude! [Smiley face icon]". She went on in her examination‑in‑chief to describe the atmosphere at Singleton Primary School as "rancid". She alleged that there was a sexual culture where sex was spoken about all the time.
Ms Saunders was carefully cross‑examined in respect of the anecdotal notes and the discrepancies between the events as described in the anecdotal notes and the statutory declaration. At the commencement of her cross‑examination, Ms Saunders advised us that the dates in the anecdotal notes were either the date of the event or the date the event was written up in the notes. However, when later cross‑examined in respect of discrepancies, relating to two events on Saturdays and one event during school holidays, Ms Saunders suggested that she may have written the dates at a later date and tried to guess the date of the event. In particular, there was an entry in the anecdotal notes for 21 July 2004, which stated that Mr Watt "Told me he had another dream this time I was giving him head job while he was sitting at my class in my desk". A schedule of the relevant term dates for Singleton Primary School for 2004 shows that the holiday break between term 2 and term 3 was from 10 July 2004 to 25 July 2004. As a result, it was put to Ms Saunders that the conversation could not have taken place on 21 July 2004 as it was in term break. In response, Ms Saunders suggested that she may have written notes at later dates and attempted to guess the date of the event. Further, when asked when she began making notes, Ms Saunders stated that it was in March 2004. The first entry in the anecdotal notes is dated 23 March 2004. However, this is inconsistent with [18] of the statutory declaration where, after describing the alleged event on 21 July 2004, Ms Saunders states "it was at this stage that I thought about writing things down".
Ms Saunders was also cross‑examined on events appearing in the statutory declaration which were not recorded in the anecdotal notes. Essentially, counsel for Mr Watt argued that many of the more important incidents referred to in the statutory declaration involving sexual acts alleged to have occurred on the school premises are not recorded in the anecdotal notes. In particular, Ms Saunders alleges that she performed oral sex on Mr Watt in the library. In cross-examination, she suggested that there were several incidents, one in 2004 and one in 2005, when she performed oral sex on Mr Watt. Despite this, there is no mention of those incidents in the anecdotal notes. She maintains that although she was initially a willing participant, after the second oral sex incident, she made clear to Mr Watt that she did not want to further participate. Ms Saunders' representative's letter to the Commissioner dated 15 February 2006 states that the reason Ms Saunders was able to provide the Commissioner with detailed claims regarding Mr Watt's behaviour "is because Ms Saunders wrote down and recorded the unwelcome advances by Mr Watt, progressively, at the respective time at which they occurred." Mr Watt's counsel argued, therefore, that it was represented to the Commissioner and to this Tribunal that the anecdotal notes were of great importance as they record important events concerning the alleged sexual harassment. Both Mr Watt and the Department point out that despite this, many of the key alleged events referred to in Ms Saunders' statutory declaration are not recorded in her anecdotal notes.
Both Mr Watt and the Department contend that many of the events referred to by Ms Saunders, whether in the statutory declaration or the anecdotal notes, would be highly difficult to achieve in a busy classroom or in the precincts of a busy school. An example is the alleged incident on 21 July 2004 (leaving aside that this date was not during the school term) in which Ms Saunders relates an alleged conversation with Mr Watt where he describes a dream he had about her giving him oral sex while he sat at her desk. Ms Saunders alleges that this conversation occurred during a class when the room was full of students. Mr Watt denies that this conversation took place, and his counsel argued that it was improbable that a conversation concerning this topic could or would be conducted in front of a classroom of young children.
The respondents also argue that in many cases the statutory declaration expands on the anecdotal notes. Mr Watt's counsel suggests that the entry for 3 September 2004 in the anecdotal notes is embellished at [20] of the statutory declaration where Ms Saunders refers to another teacher being hired by Mr Bevan Ripp, the principal, because Mr Watt indicated that Mr Ripp considered "… she had great tits …". There is no reference to that part of the conversation in Ms Saunders' anecdotal notes. Mr Watt's counsel maintains that this would have been of significant importance as it indicated the way in which jobs at Singleton Primary School were linked to sexual matters.
Mr Watt's counsel also points to a less than detailed entry in Ms Saunders' anecdotal notes for an alleged incident on 8 September 2004. The entry reads:
"Came to classroom basically asked me if I would consider having affair with married man ‑ the [sic] again after school. I told him only if I got a job out of it".
Yet, in the statutory declaration, this alleged incident covers six paragraphs. According to the anecdotal notes and the statutory declaration, this exchange is alleged to have taken place on or about 8 September 2004; whereas Ms Saunders' witness statement at [6] indicates that the approach occurred in or around August 2004. At [6] of Ms Saunders' witness statement she suggests a positive offer was made to her by Mr Watt:
"In or around August 2004, I was due to apply for a permanent position. At or around the same time, Watt approached me and asked whether I would have an affair with a married man. He further suggested that he and I ought to have an affair together. Watt then asked me 'what would it take in order for you to have an affair with me?' or words to that effect, and I replied that it would take 'a permanent position at the school the following year'. Watt then made an offer to me that he would organise a permanent position for me at the school in return for sexual favours."
Yet no such positive offer is mentioned in the anecdotal notes or in the statutory declaration. The respondents argue that this positive assertion found in Ms Saunders' witness statement arises subsequent to and as a result of a letter dated 5 April 2006 from the Commissioner to Ms Saunders' union representative where, at [3], the Commissioner states:
"… From paragraph 20 onwards [of the statutory declaration] what emerges is that Mr Watt wanted to have sex with Ms Saunders and told her so, but it was Ms Saunders herself who proposed the sex for permanency arrangement. It was not the case that Mr Watt said to her 'if you don't have sex with me you will never get a permanent job in this school'. On Ms Saunders' own allegations, Mr Watt just wanted sex. There is nothing in Ms Saunders' statement to support an inference that permanency was conditional on her having sex with Mr Watt."
Another discrepancy in Ms Saunders' evidence arises in relation to the entry in the anecdotal note for 15 September 2004 which states:
"Day after interview ‑ told me if I had headache a cure was to get undressed and let a certain Deputy Principal to give a massage."
However, the statutory declaration at [36] goes further:
"On the day after the interview, the 15th September 2004 whilst in the administration building, Mr Watt enquired as to how I was, I told Mr Watt I had a headache, to which he told me '… he had a cure, for me to get naked and he would massage me …'. He then pulled me into the nurses' room, by getting hold of my arm, and groped me. I pulled him off and told him I wasn't feeling well. He then said: '… OK … I will leave you alone but can you just get a naked picture of yourself? …'. '… No …'. I told him. I don't possess one and I thought it inappropriate that he should ever even ask me".
The description in the anecdotal notes of the alleged events on 29 September 2004 reads:
"Dan came into phone room and physically touched me in a hug and pressed his body to mine at the back and rubbed my arm. I was on phone and could not tell him off. I told him off when I was put on hold but then Jacquee came into the room. Saved!"
In her subsequent statutory declaration Ms Saunders sets out a slightly different account and provides additional detail that the respondents say is embellishment:
"[47]On the 29 September 2004, I was on the phone in an office in the administration block and he came in and started physically touching me, my shoulders and then my breasts. I was on the phone and trying to fight him off, by pushing his hand away from my body. However, Mr Watt appeared to be enjoying himself, as he was laughing whilst I was trying to get him off me.
[48]Finally I was put on hold and turned to get angry with him when another teacher walked in. He just laughed at me."
Similarly, in relation to an incident on 27 January 2005, which allegedly involved Ms Saunders giving Mr Watt oral sex at the school on that date, there is a discrepancy between the anecdotal note and the statutory declaration for the same incident. In her anecdotal note for that incident, she states as follows:
"21st of January 2005. First day back and Dan asked me to help him in library store room. Once we were there he asked me to suck his cock ‑ I was shocked and told him no I don't want to do that and just then Michelle came in and I had to hide in storeroom. I felt ashamed and stupid hiding in storeroom ‑ told him I wanted to be left alone."
Yet, in her statutory declaration for the same incident, Ms Saunders states at [62]:
"He wanted to have sexual favours again, and I felt lonely. I was a bit lonely and vunerable [sic], so I agreed, and he asked me to give him oral, and I started to, but we nearly got caught."
There is another discrepancy between the anecdotal notes and the statutory declaration regarding an alleged discussion that Ms Saunders clarified took place in Mr Watt's office on 23 May 2005. However, Mr Ripp confirmed that Mr Watt was absent from school on that date, as was Ms Saunders, who was on family carer's leave for three days.
Ms Saunders provided no further evidence to the Tribunal and called no other witnesses in support of her position, and in particular, in support of her evidence that during 2004 and 2005 she complained to many people of the ongoing nature of the alleged sexual harassment. She alleged that she told a friend, Mr Marty Majors, of the ongoing alleged sexual harassment by Mr Watt against her. On being questioned by the Tribunal as to why these witnesses were not called to give evidence to support her allegations, Ms Saunders claimed that her lawyers advised her not to do so.
In cross-examination, Ms Saunders also conceded that she was aware, when she was making her anecdotal notes, that Mr Watt's alleged conduct that she was recording constituted sexual harassment. She also stated that she was aware of the Department's policy concerning sexual harassment and that she could report the conduct to a grievance officer and not be victimised for making a claim. She maintained, however, that she was worried about losing her job and so did not report the alleged conduct.
The respondents' evidence
In opposition to Ms Saunders' case, Mr Watt and the Department relied on documentary evidence filed in the Tribunal and on the following witnesses:
•Mr Daniel Watt;
•Mr Thomas Burke;
•Mr Bevan Ripp;
•Ms Jacquee Ross;
•Ms Tracey Hall;
•Ms Michelle Kelly;
•Ms Rebecca Roberts;
•Ms Kelly Dansie;
•Ms Amber Kalem; and
•Ms Rachael Mayhew.
Apart from Ms Mayhew, each of the above witnesses' evidence constituted their witness statements and oral testimony at the hearing. Ms Mayhew did not give oral testimony as her witness statement was admitted by consent.
Mr Daniel Watt
Mr Watt denies that he made unwelcome sexual advances, unwelcome requests for sexual favours or engaged in unwelcome conduct of a sexual nature in relation to Ms Saunders. In particular, he denies that he ever made an offer to Ms Saunders that he would organise a permanent position for her at Singleton Primary School in return for her providing him with sexual favours.
Mr Watt was appointed deputy principal at Singleton Primary School in 2001 and remained in that position until 2005 when he was granted leave by the Department to pursue a position at the Department of Education and Arts in Queensland. He returned to Western Australia in January 2007 and was then appointed on a temporary basis as a deputy principal at Cooinda Primary School until July 2007. Although he has not resigned from the Department, he now works as a real estate representative.
In cross‑examination, Mr Watt explained that he had applied for the position in Queensland in 2005. Mr Watt was cross-examined on why he has given up his position in the Department to take up work in real estate. Mr Watt explained that he had wanted a career change. Mr Watt denied when crossexamined that he had ever made comments of a sexual nature to Ms Saunders. In his witness statement, he also states at [14]:
"Contrary to the picture Ms Saunders paints in her statements, she was the person who initiated sexual conversations both with me privately and at Friday evening drinks in my presence and the presence of other staff members. Other staff members have informed me that she also initiated sexual conversations with them privately."
In crossexamination, Mr Watt explained that at no time did he initiate those conversations nor did he respond or seek to stop Ms Saunders in discussing sexual matters. He explained to the Tribunal, as in his witness statement, that the only time he sought to limit Ms Saunders in her contact with him was when she had sent him a sexually explicit joke by SMS. Mr Watt also suggested that he had been informed by another colleague, Ms Amber O'Connor, that she had gained the impression that Ms Saunders "had feelings for" him. However, at [20] of his witness statement, he indicates that he had not gained that impression, but nonetheless, at the end of 2004, he thought it prudent not to keep Ms Saunders under his control as line manager.
Mr Watt's witness statement consists of 237 paragraphs. He was closely crossexamined regarding his denial of the allegations of sexual harassment made against him by Ms Saunders and maintains his denial of any sexual harassment by him against Ms Saunders. In particular, Mr Watt continues to deny that he ever suggested any arrangement whereby he would guarantee Ms Saunders a permanent position if she granted him sexual favours. Indeed, at [104] of his witness statement, which he confirmed in oral evidence, Mr Watt states:
"In fact, the only time I can recall any suggestion to that effect was when Ms Saunders and I were walking to the staff room together one day (I cannot recall when) and Ms Saunders commented with words to the effect: 'What do you have to do around here to get a job? Who do I have to sleep with?'"
Mr Watt indicated that he did not respond to that comment, nor did he seek to admonish Ms Saunders that the comment was inappropriate, or seek to report the comment to his superior, Mr Ripp.
With respect to various incidents where Ms Saunders alleges that Mr Watt touched her sexually whilst at school (such as at [36] of the statutory declaration), Mr Watt maintains that these incidents did not occur. Further, he maintains that many of the places where Ms Saunders alleges these incidents occurred were within high traffic areas of the school.
Mr Watt confirms in his witness statement that he sent Ms Saunders the smiley face email. He does not recall why, but he denies it was in response to any incident involving touching Ms Saunders during one of the "tribal challenges".
In relation to the undated note that Ms Saunders said was her note to Mr Watt seeking to ascertain the details for her attendance at the school concert, (and where she alleges Mr Watt wrote back ‑ "Your house! Whenever you feel ready!"), Mr Watt stated he was not convinced that those words were in his handwriting. He maintained that he did not write the note.
Mr Watt did confirm that he was involved in the merit selection panel in relation to jobs for 2004 and 2005 at Singleton Primary School.
On cross‑examination by the Department's counsel, Mr Watt was asked whether, in relation to the 2004 panel and the 2005 panel, he sought to influence any members of the panel, either for or against Ms Saunders. He was emphatic that he did not do so, and further, that in the time period 2004/2005, he did not suggest to members of the selection panel that he had an arrangement with Ms Saunders to get her a permanent position or any position at Singleton Primary School in exchange for sexual favours.
Mr Thomas Burke
Mr Burke's evidence constituted his witness statement and oral evidence given at the hearing of this matter. Mr Burke explained that he was a deputy principal at Singleton Primary School and had worked at the primary school for 9 years. He confirmed knowing Mr Watt and Ms Saunders. He described Mr Watt as a "people person" with a good sense of humour. He stated that his only involvement with Ms Saunders was during school and on a professional basis. He described Ms Saunders' disposition as unpredictable and emotional. He considered that the relationship between Mr Watt and Ms Saunders was friendly in 2004 and 2005 and at no time did he consider that Ms Saunders behaviour indicated that she was fearful of Mr Watt or was trying to avoid him. He also confirmed that he never saw Mr Watt engage in any sex based physical or verbal conduct towards Ms Saunders in 2004 and 2005. He stated that he considers that conduct of that kind would have been noticed as the school has a very close co-operative working environment. He confirmed he was on the 2005 selection panel for vacancies that arose for the 2006 year. He recalled that each panel member scored Ms Saunders very similarly and Mr Watt scored her slightly higher. He said that when the panel needed to reach consensus, it did not find it difficult to do so concerning Ms Saunders ranking. He stated that during this process Mr Watt did not place any pressure on the other panel members with respect to Ms Saunders' ranking. He also confirmed that at no time had he been bullied or intimidated by Mr Ripp in providing his evidence to the Tribunal as has been alleged by Ms Saunders.
Mr Bevan Ripp
Mr Ripp is the principal at Singleton Primary School and has been in that position since 1999. He has over 30 years' experience as a teacher and has held positions as both principal and deputy principal at various primary schools in Western Australia since 1981. He confirms that on 25 November 2003, Ms Saunders accepted an offer of an appointment as a Year 3 teacher at Singleton Primary School for the 2004 year. Ms Saunders had applied for one of a number of teaching positions at the school which were advertised in August 2003. There were 24 applicants for the positions, and eight, including Ms Saunders, were short-listed for an interview. Following a telephone interview during September 2003, Ms Saunders was ranked eighth, and she was offered the position for 2004 after clear vacancies had been filled and other applicants ranked above her had declined the position.
Mr Ripp confirmed that on 24 August 2004, Ms Saunders applied for positions that may become available in the school in 2005 and the selection process involved two selection panels running simultaneously. As principal, Mr Ripp was the Chair of both panels. The other panel members were Ms Karen Mort and Mr Watt. For the early childhood positions, nine applicants were short-listed for interview, but Ms Saunders was not deemed competitive enough to be short-listed. In relation to the generalist positions, 11 applicants were short-listed and Ms Saunders was deemed by the panel to be competitive in this pool.
Following interviews in September 2004, Ms Saunders was ranked 10th out of 11 persons who were interviewed. After the interview process was concluded, all vacancies were filled from within the two pools and Ms Saunders was not offered one of the positions. However, towards the end of term 4, three further 12 month fixed term positions became available, and after exhausting the applicants ranked higher in the list, Ms Saunders was offered a position which she accepted. Accordingly, Ms Saunders was placed in a Year 4/5 class for 2005 on a contract which ceased on 16 December 2005. Mr Ripp described Ms Saunders as an average performer and indicated in his witness statement that during Ms Saunders' time at Singleton Primary School, there were a few parent complaints regarding her performance.
With respect to the allegations of sexual harassment, Mr Ripp said that at no time during 2004 or 2005 did Ms Saunders ever raise any concerns or issues with him in respect of Mr Watt's behaviour towards her. He also indicated that during this time, he never saw Mr Watt touch Ms Saunders inappropriately or heard him make any inappropriate sexually based comments to her. He expressed surprise when he heard that Ms Saunders had made the allegations about inappropriate behaviour by Mr Watt and considered that the conduct which Ms Saunders alleges Mr Watt engaged in could not have occurred unnoticed in the school environment for a period of two years, particularly as many of the instances are alleged to have occurred in high traffic areas, such as rooms near the reception and the library. He also made a point that he considered many of his staff feel comfortable confiding in him and believed that if any of his staff suspected that Mr Watt was behaving inappropriately to Ms Saunders, they would have confided their suspicions to him.
In relation to the 2005 selection process for the 2006 positions, Mr Ripp stated that the short listing for interviews did not take place until late October and early November 2005. He went on to explain that the selection panel received 46 applications for positions in 2006 and the applicants were a particularly strong pool.
In relation to the process followed by the selection panel, Mr Ripp explained that each panel member individually examined each application and scored it according to certain criteria. The selection panel then met, examined the individual scorings and reached consensus. The applicants were then ranked.
With respect to Ms Saunders, Mr Ripp explained that each panel member scored Ms Saunders in a very similar manner and it was not difficult to reach consensus. He maintained that Mr Watt did not influence or attempt to influence the decision of the selection panel with respect to Ms Saunders' ranking. Indeed, he pointed out that Mr Watt had ranked Ms Saunders slightly higher than the other panel members. He explained that, in his view, Ms Saunders simply was not competitive against the other applicants. He also explained that the merit selection process required the panel members to make a judgment based on the written application only, and they could not draw on their personal knowledge of the applicant's classroom teaching abilities or character when reviewing an application.
At approximately 3.10 pm on 1 November 2005, Mr Ripp advised Ms Saunders that she had not been successful in being short-listed. He suggested that her response bordered on being hysterical. He explained that Ms Saunders was crying and she raised her voice. He said he spent approximately 30 minutes with her, explaining to her that the panel had each made an independent assessment of her application prior to meeting in order to reach a consensus, and that each panel member's ratings against each of the criteria was quite similar.
Mr Ripp denied Ms Saunders' allegation at [12] of her statement of issues, facts and contentions where she alleges that Mr Ripp told her that he could not give her any feedback on the interview "until the whole process is over". He explained that he suggested that Ms Saunders come back at a time when she was less emotional but as she insisted on seeking feedback, he explained to her that the pool of applicants for that year was much stronger and was twice the number of the previous year. He also told her that he and Mr Watt were of the opinion that her written application had not progressed greatly in quality from her first application to Singleton Primary School in 2003.
Mr Ripp gave evidence that at approximately 6.45 pm on 1 November 2005, Mr Watt rang him at home to inform him that he had just received a telephone call from Ms Saunders' partner who had made veiled threats to him about improper behaviour towards Ms Saunders over the past year. He said that Mr Watt informed him that the implication was made to him that her job depended on her providing sexual favours to him. He said that Mr Watt seemed taken aback and shocked by the allegations. He said the next day at school, Ms Amber Kalem approached him to say that Ms Saunders had called her the previous night and made accusations about Mr Watt behaving in a solicitous and inappropriate manner for the past year. Ms Saunders told Ms Kalem that Mr Watt had suggested that a job for her at Singleton Primary School depended on her providing sexual favours to him.
On 2 November 2005, Ms Saunders was on sick leave. Mr Ripp telephoned her at home to discuss the inappropriateness of her partner contacting a selection panel member. He also wanted to speak to her about her allegations concerning Mr Watt. He stated that Ms Saunders refused to be specific about what it was she was alleging against Mr Watt but she implied that the behaviour was of a sexual nature. He enquired why Ms Saunders had not reported the incidents when they occurred, to which Ms Saunders did not respond. He then explained to her in detail the process that was available to her to register a grievance, appeal the decision of the selection panel or submit a formal complaint to the Complaints Management Unit. Mr Ripp maintained that Ms Saunders kept repeating that she was entitled to her opinion and declined to register a complaint about either the selection process or Mr Watt's alleged behaviour. As a result, Mr Ripp did not refer the matter at that time to the Complaints Management Unit, as he did not consider Ms Saunders was making a complaint to him.
Mr Ripp explained that Ms Saunders took the next three days off on sick leave. On 7 November 2005 he received a letter from Ms Saunders alleging a breach of public sector standards. She claimed "that the selection process was unfair and inconsistent with the procedures and regulations". Mr Ripp gave evidence that on 8 November 2005, Ms Saunders provided to him an appeal she had prepared against the selection process. On 9 November 2005, he forwarded Ms Saunders' letter of complaint and some other documents to Ms Rachael Mayhew, Policy Officer at the district office for the Department. Mr Ripp explained that the Department arranged for a different panel to read and compare the short-listed applications with Ms Saunders' application. That panel also concluded that Ms Saunders was not competitive with other short-listed applications in the context of the strength of the pool of applicants.
Mr Ripp confirmed that on 1 March 2006, the Commissioner for Public Sector Standards informed the Director General for the Department that she had dismissed Ms Saunders' claim for breach of the recruitment selection in appointment standard. A copy of that letter was provided in the bundle of documents filed by the Department.
Mr Ripp denied Ms Saunders' allegations in [20] of the statutory declaration where she says:
"On the 3 September 2004, I asked him about my application, all he said was that I should wear a low cut top and no underwear because "… that's what Bevan (Ripp, the Principal) liked…". He said that's why he hired Sheri - teacher Ms Murray. To the best of my recollection, Mr Watt went on to say that Melanie Stafford was going to get the job because Bevan liked her and he thought "… she had great tits!...". [original emphasis]
Mr Ripp said that he never said to either Mr Watt or Ms Saunders that Ms Saunders should wear a low-cut top and no underwear to an interview. He also denied that he said to either Mr Watt or Ms Saunders that another staff member was going to get the job because he liked her and because "she has great tits".
He confirmed that he is aware that Ms Saunders applied for a teaching position at Waikiki Primary School and was offered a 12 month fixed term contract for the 2006 school year, and later obtained a permanent position at that school in 2007.
In relation to equal opportunity awareness, Mr Ripp confirmed that the Department's Sexual Harassment Resolution for Employees and Students Policy is available on-line, as well as on compact disc, and is issued to schools by the Department. He confirmed that all staff at school has their own computer or access to a shared computer, and teachers are instructed and periodically reminded of the need to remain current in their knowledge and implementation of policies, and all staff are trained in accessing central policies using electronic media.
In cross-examination, Mr Ripp stated that he could not remember the exact date when Mr Watt had made application for leave without pay, but explained that usually those applications have to be made by the middle part of the year and that it was probably made around about the end of August 2005. He also confirmed his evidence given to the Commissioner in response to Ms Saunders' statutory declaration where, at item 26 of his response, he confirmed that he had checked details to confirm that, in relation to an incident which allegedly occurred at the school on 23 May 2005, Mr Watt was at a meeting of his collegiate group and Ms Saunders was on family carer's leave.
In response to questions from the Tribunal in relation to whether any inappropriate behaviour occurred at Friday night drinks at the school, Mr Ripp stated that he considered the staff at Singleton Primary School were comprised of a core group of experienced female teachers who are very proud of the school and very perceptive. He considered that, given Ms Saunders' allegations, he could not believe that there would not be at least one or more of the teachers who would be "banging my door down to come and say 'look, there's something going on here – you'd better do something about it'."
Mr Ripp's oral evidence and his witness statement make clear that at no time was any allegation of sexual harassment made to him prior to 1 November 2005, nor was he informed by any other staff member that they suspected this was the case.
Ms Jacquee Ross
Ms Ross is currently employed as a Year 4/5 classroom teacher at Singleton Primary School having commenced work there in April 2001. She confirmed that during her employment and in particular in 2005 she was Ms Saunders' "critical friend". A critical friend provides advice on teaching methods and also offers professional advice to that other person. It is a practice adopted throughout the school.
Ms Ross explained that in 2004 and 2005 she observed Ms Saunders and Mr Watt interact on a daily basis in what she described as an open and collegial friendship with each other. She did not consider that Mr Watt treated Ms Saunders any differently than any other staff member. Further, she confirmed that she did not witness Mr Watt engage in any sexually based contact with Ms Saunders. Additionally she did not consider that Ms Saunders' behaviour indicated that she was at any time trying to avoid Mr Watt.
Ms Ross gave evidence that she had no recollection of an incident referred to in Ms Saunders' anecdotal notes which states:
"Dan came into phone room and physically touched me in a hug and pressed his body to mine at the back and rubbed my arms. I was on phone [sic] and could not tell him off. I told him off when I was put on hold but then Jacquee came into room. Saved!"
Ms Ross also considered that if any sexually based conduct was occurring at the school between staff members, it would have been noticed as the school was very open. If she had witnessed any such conduct she would have immediately brought it to the attention of Mr Ripp.
We also note that many of the alleged events, which would support Ms Saunders' claims under s 24(3)(b) of the EO Act, simply are not mentioned in her anecdotal notes. We refer to those discrepencies above when discussing Ms Saunders' evidence
In addition, there are entries in the anecdotal notes in respect of incidents that took place on the school premises when neither Mr Watt nor Ms Saunders were at school, either because the date occurred during a term break or at a time when either or both Mr Watt or Ms Saunders were away.
The only other documentary evidence Ms Saunders relied on to support her allegations were the "smiley face" email and the note concerning the music concert. In neither document is there any communication that is of a sexual nature. We consider them to be of very little weight in supporting Ms Saunders' claims.
Further, we are not satisfied that Ms Saunders' oral evidence was provided in an open and forthright manner. During cross-examination, Ms Saunders relied heavily on the written documents, being either the statutory declaration or anecdotal notes. Further, on many occasions when being questioned, she offered no answer and simply sat in silence.
There was a complete lack of support for any of Ms Saunders' allegations about Mr Watt, Mr Ripp, the selection process or the atmosphere at Singleton Primary School, by any of the respondents' witnesses. The respondents' witnesses to whom Ms Saunders alleged she made statements to support her allegations deny those statements were made. In particular:
(1)Mr Watt denies ever having made an offer to Ms Saunders that he would provide her with a permanent position in exchange for sexual favours;
(2)Ms Ross stated she had no recollection of Ms Saunders ever suggesting to her prior to 1 November 2005 that she had something over Mr Watt; and
(3)Ms Roberts denied that Ms Saunders told her at the end of 2004 of the alleged arrangement she had with Mr Watt.
We consider that each of the witnesses called by the respondents gave their evidence in an open and frank manner and that they sought to inform and assist the Tribunal.
One of the most important witnesses for the respondents was Mr Watt. We are of the view that Mr Watt gave his evidence in a confident manner, and throughout emphatically denied all of the allegations by Ms Saunders. He also denied that he had any sexual contact with Ms Saunders. He did state, however, that on many occasions, Ms Saunders discussed matters of a sexual nature with him. It is unfortunate that Mr Watt, as deputy principal, took no proactive steps to prevent these discussions occurring. His approach to these matters was light‑hearted. We consider that it is perhaps this light‑hearted management approach that in some way may have contributed to this claim against him.
Further, all witnesses who were teachers at Singleton Primary School made clear that it would be extremely difficult for the incidents of sexual conduct, alleged by Ms Saunders, to have occurred in a busy primary school at all, let alone so that no one noticed.
In addition, we are concerned that, despite what are clearly significant allegations of sexual harassment, Ms Saunders, who was aware of the Department's policy concerning sexual harassment, made no complaint of these matters until after she was informed that she had been unsuccessful in gaining a position with Singleton Primary School for the 2006 school year on 1 November 2005.
Accordingly, although we are not left with the impression that Ms Saunders was a person necessarily prone to exaggeration, we could not be satisfied that she has overcome the burden of proof she bore in this matter.
Even if Ms Saunders had satisfied us to the necessary standard that Mr Watt had made some unwelcome sexual requests for sexual favours or engaged in other unwelcome conduct of a sexual nature towards her, we are not satisfied that as a result of Ms Saunders' rejection of those advances, refusals or objections, she was disadvantaged in any way in connection with her employment with the Department.
There is no evidence to show, either directly or by inference, that members of the selection panel in 2005 colluded in any way at the request of Mr Watt to prevent Ms Saunders from obtaining a position with Singleton Primary School in 2006. The evidence given by each of the panel members of the 2005 selection panel was clear and unequivocal on that issue. We are satisfied that Ms Saunders failed to obtain a position with Singleton Primary School for the 2006 school year due to the selection panel's conclusion that her application ranked poorly amongst the applicants for the positions for the 2006 year. That ranking was supported by the independent panel who subsequently assessed her ranking following her public sector standards complaint.
However, even if there had been some evidence of some form of collusion on the part of the members of the selection panel to lead us to a conclusion that Ms Saunders was disadvantaged in her employment, we consider there is insufficient evidence to establish that Ms Saunders suffered any quantifiable loss. Ms Saunders was successful in obtaining a position for the 2006 year at Waikiki Primary School. This is now a permanent position. As a result, she doesn't seek to suggest she was financially disadvantaged. Rather, she is alleging that as a result of emotional distress she was disadvantaged.
The only medical evidence was from Dr Hilton, dated 28 February 2006. Although that report refers to Ms Saunders suffering depression in December 2004 and November 2005 it does not state that this related to any alleged sexual harassment during the course of her employment. Nor does it refer to the relevant period from when she was unsuccessful in obtaining a position at Singleton Primary School to the date she commenced at Waikiki Primary School. We ruled during the hearing that an undated report from psychologist Mr Graneri was inadmissible, as Mr Graneri was not available for cross‑examination, nor had any witness statement from him been provided. Due therefore to the lack of any clear medical evidence to support the allegation that she suffered pain and suffering in the period when she was unsuccessful in obtaining a position at Singleton Primary School to the date she commenced at Waikiki Primary School, we could not be satisfied that any such claim is made out.
Orders
In all the circumstances, we consider that the allegations against Mr Watt have not been made out and the complaint should be dismissed. It follows, therefore, that there is no vicarious liability on the part of the Department.
1)The proceedings against each respondent are dismissed; and
2)If either or both the respondents seek an order for costs under s 87 of the State Administrative Tribunal Act 2004 then they must notify the Tribunal, the applicant and the other respondent by 4 June 2008 and the application will be listed for hearing of oral submissions.
I certify that this and the preceding [147] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT
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