SUMMERVILLE and DEPARTMENT OF EDUCATION & ORS [2006] WASAT 368

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 368
Act:	EQUAL OPPORTUNITY ACT 1984 (WA)
Case No:	EOA:116/2005	Heard:	25, 26, 27, 30 & 31 OCTOBER 2006 17 NOVEMBER 2006
Coram:	JUSTICE M L BARKER (PRESIDENT) MS F CHILD (MEMBER)	Delivered:	14/12/06
No of pages:	40	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	AMBER SUMMERVILLE DEPARTMENT OF EDUCATION ASHLEY JOYCE STEPHEN FURTADO
Catchwords:	Equal opportunity Allegations of sexual harassment Allegations of "sex based harassment"
Legislation:	Equal Opportunity Act 1984 (WA), s 8, s 11, s 24, s 24(2)(a), s 24(3), s 24(4), s 89, s90(2), s 93(1)(b), s 161
Case References:	Ashton v Wall & Anor (1992) EOC 92-447 Briginshaw v Briginshaw (1938) 60 CLR 336 Chaisty v City of Perth (2004) EOC 93-323 EO Tib (WA) Hardy v Kelly & Anor (1991) EOC 92-369 EO Bd (Vic) Summerville and Department of Education & Ors [2006] WASAT 174 Thorneycroft v Scothern (1992) EOC 92-471 EO Bd (Vic) A v B & Anor (1991) EOC 92-367 Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143 Bennett & Anor v Everitt & Anor (1988) EOC 92-244 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13, 19 Capodicasa v Herald and Weekly Times Ltd & Ors (1999) EOC 92-969 Dee v Commissioner of Police, NSW Police & Anor (No 2) [2004] NSWADT 168 Dipper v Luxford & Anor (1996) EOC 92-828 Director-General of Education & Anor v Breen & Ors (1984) EOC 92-105 Freestone v Kozma (1989) EOC 92-249 Gray v State of Victoria & Anor (1999) EOC 92-996 Hall & Ors v A & A Sheiban Pty Ltd & Ors (1989) 20 FCR 217 Horn & Anor v Press Clough Joint Venture & Anor (1994) EOC 92-591 Lonergan Pty Ltd v Commissioner for Police (WA) (Unreported, WA SC Full Court, 12 June 1996, BC9602521) McAlister v SEQ Aboriginal Corp for Legal Services [2002] FMCA 109 Mills v Bennett & Anor (1994) EOC 92-640 Nowland v TNT Skypak & Anor (1993) EOC 92-509 Turner v Bowling & BHB Tax Services Pty Ltd (2000) EOC 93-092 Victoria v the Commonwealth (1971) 122 CLR 353, 399
Orders	For the reasons now stated, on 17 November 2005 the Tribunal dismissed the application of Ms Summerville and made the following orders:,1. The proceedings against each respondent are dismissed.,2. The Tribunal will publish detailed written reasons for its decision within 28 days.,3. The respondents will be at liberty to apply for any consequential orders following the delivery of the written reasons for decision.,4. The suppression order made on the first day of the hearing is now discharged.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : SUMMERVILLE and DEPARTMENT OF EDUCATION & ORS [2006] WASAT 368 MEMBER : JUSTICE M L BARKER (PRESIDENT)

MS F CHILD (MEMBER)

HEARD : 25, 26, 27, 30 & 31 OCTOBER 2006

17 NOVEMBER 2006

DELIVERED : 15 DECEMBER 2006 FILE NO/S : EOA 116 of 2005 BETWEEN : AMBER SUMMERVILLE

Applicant

AND

DEPARTMENT OF EDUCATION

First Respondent

ASHLEY JOYCE

Second Respondent

STEPHEN FURTADO

Third Respondent

Catchwords:

Equal opportunity - Allegations of sexual harassment - Allegations of "sex based harassment"

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Legislation:

Equal Opportunity Act 1984 (WA), s 8, s 11, s 24, s 24(2)(a), s 24(3), s 24(4), s 89, s90(2), s 93(1)(b), s 161

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : Self-represented

First Respondent : Mr AJ Sefton

Second Respondent : Mr AJ Sefton

Third Respondent : Mr MD Cox

Solicitors:

Applicant : Self-represented

First Respondent : State Solicitor's Office

Second Respondent : State Solicitor's Office

Third Respondent : Mark Cox Barrister & Solicitor

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

Ashton v Wall & Anor (1992) EOC 92-447
Briginshaw v Briginshaw (1938) 60 CLR 336
Chaisty v City of Perth (2004) EOC 93-323 EO Tib (WA)
Hardy v Kelly & Anor (1991) EOC 92-369 EO Bd (Vic)
Summerville and Department of Education & Ors [2006] WASAT 174
Thorneycroft v Scothern (1992) EOC 92-471 EO Bd (Vic)

Case(s) also cited:

A v B & Anor (1991) EOC 92-367

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Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143
Bennett & Anor v Everitt & Anor (1988) EOC 92-244
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13, 19
Capodicasa v Herald and Weekly Times Ltd & Ors (1999) EOC 92-969
Dee v Commissioner of Police, NSW Police & Anor (No 2) [2004] NSWADT 168
Dipper v Luxford & Anor (1996) EOC 92-828
Director-General of Education & Anor v Breen & Ors (1984) EOC 92-105
Freestone v Kozma (1989) EOC 92-249
Gray v State of Victoria & Anor (1999) EOC 92-996
Hall & Ors v A & A Sheiban Pty Ltd & Ors (1989) 20 FCR 217
Horn & Anor v Press Clough Joint Venture & Anor (1994) EOC 92-591
Lonergan Pty Ltd v Commissioner for Police (WA) (Unreported, WA SC Full Court, 12 June 1996, BC9602521)
McAlister v SEQ Aboriginal Corp for Legal Services [2002] FMCA 109
Mills v Bennett & Anor (1994) EOC 92-640
Nowland v TNT Skypak & Anor (1993) EOC 92-509
Turner v Bowling & BHB Tax Services Pty Ltd (2000) EOC 93-092
Victoria v the Commonwealth (1971) 122 CLR 353, 399

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The State Administrative Tribunal dismissed complaints of sexual harassment and sexual discrimination against the Education Department and two employees. The complaint had been referred to the Tribunal by the Equal Opportunity Commission at the request of the complainant following the dismissal of the complaint by the Equal Opportunity Commission on the grounds that it was lacking in substance.

2 After a six day hearing the Tribunal determined that the complaints should be dismissed as the evidence of the applicant could not be relied on.

3 In relation to the second respondent, the Tribunal was not satisfied that the conduct complained of as sexual harassment had occurred.

4 In relation to the third respondent, the Tribunal determined that even if all of the conduct complained of had occurred it was not satisfied that it constituted sexual harassment or sexual discrimination under the Equal Opportunity Act 1984 (WA).

5 Because the complaint against its employees were dismissed, the complaint against the Education Department was also dismissed.

The complaint

6 Ms Amber Summerville lodged a complaint in April 2004 with the Commissioner for Equal Opportunity asserting that she had been unlawfully discriminated against on the ground of sex and had suffered sexual harassment in the area of employment contrary to s 24(2)(a) of the Equal Opportunity Act 1984 (WA)(the EO Act).

7 On 18 February 2005, following an investigation, the Commissioner dismissed the complaint as lacking in substance pursuant to s 89 of the EO Act.

8 The complaint was then referred to the State Administrative Tribunal following Ms Summerville's request pursuant to s 90 (2) of the EO Act.

9 The complaint refers to two periods when it is alleged that there was sexual harassment of Ms Summerville; the first between February and April 2000 when Ms Summerville asserts she was sexually harassed by a second respondent, Mr Joyce, and the second between February and

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September 2003 when Ms Summerville alleges she was subjected to sexual discrimination, sexual harassment and "sex based" harassment at her workplace by the third respondent, Mr Furtado.

10 The complaints against Mr Furtado refer to "sex based" harassment, however there is no provision in the EO Act which applies to this allegation so we have treated Ms Summerville's complaint as one of sexual harassment pursuant to s 24 of the EO Act.

11 During the relevant periods of the alleged harassment, Ms Summerville was employed on contract by the Department of Education and Training (the Department) in the Personal Development Department (the PD Department) of Tuart College. In 2000, she held the "second position" reporting to the Coordinator of the PD Department, on a part-time basis, and in 2002 she was the Acting Coordinator of the PD Department.

12 At relevant times both Mr Joyce and Mr Furtado were employed by the Department: Mr Joyce was the Vice Principal of Tuart College and Mr Furtado, was a sessional singing teacher who reported to Ms Summerville as his "line manager".

13 As both Mr Joyce and Mr Furtado were, at the relevant times, employed by the Department, if the Tribunal is satisfied that Ms Summerville's claim is made out, the Department may be vicariously liable by reason of s 161 of the EO Act.

The allegations

14 In Ms Summerville's Statement of Issues, Facts and Contentions dated 7 September 2005, she identifies the relevant issues as follows:

"Ashley Joyce engaged in conduct of unwanted sexual advances, unwelcome conduct of a sexual nature and included physical touching, staring at parts of my body, suggestive comments and intrusive questionings. There were also instances of sexually provocative conduct with another person that caused embarrassment and humiliation to me. Mr Joyce's conduct was reported to my superior, Joy Boothman, who failed to take action to stop the behaviours of Mr Joyce.

Mr Stephen Furtado made suggestive comments discriminatory comments, written notices and emails that were based on my gender. There were also instances of sexually provocative

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conduct with other persons that caused embarrassment and humiliation to students and myself. Mr Furtado's conduct was reported to my superior, Joy Boothman, to Ashley Joyce and to John Anderson, all of who failed to take action to stop the behaviour of Mr Furtado."

In relation to her complaint Ms Summerville states:

"Now that other members of staff, and previous members are encouraging me to come forward, due to other investigations in process, I have some confidence to do so. I understand from recent conversations with these staff members that this practice of sexual harassment was common with many temporary female staff over a long period of time, and the practice of it was common knowledge to other staff."

15 She stated that she had lost her job because of the "collusion between Ashley [Mr Joyce] and Joy [Ms Boothman]" in relation to her claim for worker’s compensation arising out of the 6 February 2003 incident referred to later in these reasons.

16 She asserted both that it was common knowledge at the college that sexual harassment was widespread and that staff did not recognise conduct that was sexually harassing because there had been no induction of staff regarding the issue.

Preliminary decision

17 In a preliminary decision delivered 30 June 2006, the Tribunal ruled that, at the hearing of the applicant's complaint, she would be limited to pursuing allegations of sexual harassment and sex discrimination, including bullying alleged to constitute part of that alleged sexual harassment or sex discrimination, against Mr Joyce or Mr Furtado, but not allegations made in her statement of sexual harassment or sex discrimination by other officers of the Department as these had not been the subject of her original complaint to the Commission: (SeeSummerville and Department of Education & Ors [2006] WASAT 174).

The legislation

18 The sections of the EO Act that are relevant to the complaints are as follows:

19 Section 8 of the EO Act defines sex discrimination. It provides, so far as is relevant in the present circumstances:

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(1) For the purposes of this Act, a person (in this subsection referred to as the "the discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if, on the ground of-

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex."

20 Section 11 of the EO Act sets out the circumstances under which it is unlawful for an employer to discriminate against a person on the basis of sex. It provides:

"(1) …

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex … -

(a) in the terms or conditions of employment that the employer affords the employee;

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(d) by subjecting the employee to any other detriment."

Section 24 of the EO Act provides:

"(1) It is unlawful for a person to harass sexually -

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(a) an employee of that or any other person

;

(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

;

(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

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of a sexual nature concerning that person, whether the statement is made orally or in writing."

Evidence and material before the Tribunal

21 The alleged conduct of Mr Joyce in 2000: Ms Summerville's complaint about Mr Joyce is set out in a six page document which she submitted with her original complaint to the Equal Opportunity Commission on 2 April 2004.

22 The relevant parts of the letter are set out below:

"On an occasion early in February 2000, I went into the Print Cell before 8am one morning where I came across the Vice Principal photocopying. Whilst standing nearby waiting my turn, the copier presented some difficulty in production, whereupon he began talking to it as if it were a female, saying comments like 'Come on Girl, you're just being stubborn, withholding like you did last night' (sexual implications obviously about his wife) and with suggestive thrusting movements from the hip. He continued with words like: 'Come on Baby, you didn't give it to me last night, don't do this now!' and 'Oh you know how I like you to treat me' and 'Do I have to treat you rough?' were said in a sexually suggestive manner, (though not roughly) which made my position in line for photocopying one of either leave and get out of there, or put up with it and pretend I didn't get the implications. I did straight away tell the co-ordinator (Ms Boothman) of this behaviour and dialogue… She noted that he'd been doing things like this for years, even when he was teaching at Canning College.

After a few weeks, the friendliness of relating became linked with a pattern of touching, which was most uncomfortable for me (the touching was uncomfortable, not the friendliness). The Vice Principal would come into my office where, always, I was sitting down on my chair. He would begin touching my hair and stroking my face. Often he would touch my upper arm and shoulder, but the length of time he touched felt uncomfortable, like he would hold on to my shoulder whilst talking to me… He would make comments about the colour of my hair, about how he liked his girls to be red heads and how his first girlfriend, who was a real 'goer', was a red head and they turned him on ever since. He would ask questions as to whether I was a natural red head. It didn't fit for me because I didn't even see

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myself as one. The implication to me was that if I was a red head, then this would please him.

Immediately after the first incidence of unwelcomed and uncomfortable touching I spoke with the co-ordinator who had been in the adjoining office and heard the dialogue.

…

The coordinator told me she had learned how to handle it, so at least I knew I wasn't imagining it. Her response was laughter and a comment that 'he' was like that and if I didn't want 'it' then to tell him…

She told me that over the years she had counselled young female students from classes where the Vice Principal (at that time in a teaching role) had been sexually intimidating with them…

The same pattern of behaviour continued over about a 3 month period from February to April 2000.

…

One comment made to me after some time was that he was disappointed I wasn't a natural red head because they turned him on and he'd never gotten over this first girlfriend.

…

On occasions during this year [2001], the Vice Principal would 'visit' the coordinator in her office…

I found it extremely embarrassing when he would come in and in full view of me, or right in front of me while I was sitting in her office, go up and nuzzle the back of her neck under her hairline…"

23 In the amended Statement of Issues, Facts and Contentions dated 27 August 2006, and filed with the Tribunal on 28 August 2006, Ms Summerville repeats a number of the allegations which were included in her complaint to the Commission. However there is some divergence from the earlier document. In the document filed with the Tribunal she refers to the first three weeks of the commencement of the new school year in 2000 rather than the period of February to April in relation to the
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alleged conduct of Mr Joyce. She substantially repeats the material in the earlier statement but adds the following:

"He made comments about being attracted to redheads, as his first girlfriend was a redhead, adding this really turned him on, as she was a real goer. He then pulled back from standing close to me, with his hand still on my right shoulder, and looked downwards at my lap and my genital area and asked if I was a natural redhead. I was extremely embarrassed and humiliated. I was aware Joy Boothman could hear this, even if she couldn't see it happening.

I spoke with Ms Boothman immediately he left … Ms Boothman again looked at me as if I was naïve and told me I would need to grow up and deal with it myself if I wanted to keep my job. I then realised my position was not ever going to be a safe one, on temporary staff, given she said I could tell the Principal myself but it was Ashley who 'hired and fired' so it was up to me."

24 Ms Summerville stated in her evidence before the Tribunal that she had felt "totally safe with Mr Joyce in his office where he was totally polite. She asserted that he only 'did it in the presence of her' (Ms Boothman)".

25 In reference to Mr Joyce's alleged conduct with Ms Boothman in 2001, Ms Summerville makes the following statement in the later document which appears to limit this conduct to one event rather than the "occasions" referred to in her earlier statement :

" … on one occasion between June and September 2001, Ashley came into Joy's office when I was sitting in a chair adjacent to her desk, where she was working whilst I was talking with her. … He walked straight up to her back, lifted her hair which was collar length at the time, and nuzzled her neck with a 'gnung gnung gnung gnung gnung' sound, as one would make on a sexual partner in private."

26 In his evidence before the Tribunal, Mr Joyce agrees that he had worked with Ms Summerville and had been able to assist her when she came to see him frequently with queries in her role as Acting Co-ordinator in 2002. He does not recall when he first met Ms Summerville but believes it was in the last part of 1999. He states that he does not recall the alleged incident in the Print Cell. He said it was unlikely that he had
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been doing his own photocopying as he had clerical staff to assist him with some of these tasks or that he had used the Print Cell as he had a photocopier next to his office and was very busy at that time of year. He says the incident did not occur.

27 In relation to the allegations of touching Ms Summerville in her office in the PD Department, Mr Joyce denies this. He states that he did not touch the hair or face of Ms Summerville. He states he had little contact with her during the early part of 2000 when the alleged touching incidents were said to have occurred. He states he was overseas from 15 March 2000 to 1 April 2000.

28 He says that in the early part of the year it would be a rare occurrence for him to attend the PD department but he could not be sure that he had not gone there.

29 He cannot recall the colour of Ms Summerville's hair in early 2000 but he states that he did not make the comment attributed to him. He says that he did have a red headed girlfriend at high school with whom he attended school dances and the like but their relationship had not been an intimate one.

30 He denies he "nuzzled the neck" of Ms Boothman. He states that he had been overseas between 8 and 22 September 2001 when the alleged incident is said to have taken place. His passport and a statutory declaration for some expenses claimed in respect of the trip for dates coinciding with those dates are before the Tribunal.

31 Ms Summerville put to Mr Joyce that his relationship with Ms Boothman was not a sexual or romantic relationship and she "didn't see any evidence of that" but was a "flirtatious type relationship" (T: 27.10.2006 p 95). Mr Joyce denied he had a "flirtatious" relationship with Ms Boothman although he agrees he had engaged in "verbal banter" or "repartee" with her. Mr Joyce denies he had spoken with her about his relationship with his wife.

32 He denies that he has ever sexually harassed students. He states, that to his knowledge, there has been no other complaint of sexual harassment made against him in his entire career spanning some 4 decades, other than the allegation made by Ms Summerville.

33 Mr Joyce agrees with Ms Summerville that they had had a good working relationship. A photocopy of a Christmas card from Ms Summerville which he states was from a bundle he kept of those

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received in 2002 is before the Tribunal. The card is signed "Amber" and warmly thanks him for his support during the year. Ms Summerville put to him that this shows that she was "able to separate whatever the difficulties were from our professional working relationship… To write a card like that shows you that I could separate that. It shows that I don't carry a personal vendetta". (T: 27.10.2006 pp147,148) Mr Joyce stated that he was pleased to receive the card but could not comment on Ms Summerville's reasons for writing it.

34 Mr Joyce states that although they worked together well he would not regard the working relationship he had had with Ms Summerville as a comfortable or friendly one and that he was wary of her. He agrees with Ms Summerville that there had not been a specific incident to make him wary. It was, he states, a "sixth sense". Because of his concerns, he had advised his personal assistant that when Ms Summerville and 3 or 4 other staff members were in his office he preferred the door to be open. However, he agrees with Ms Summerville that she met him in his office numerous times during the period in question without any difficulty.

35 In relation to the allegations made in respect of Mr Furtado, Mr Joyce recalls Ms Summerville raising concerns with him about Mr Furtado's failure to adhere to administrative requirements and he states he had met with her to "brainstorm" a letter which she was to write to Mr Furtado setting out the expectations of sessional teachers. He states that he considered Ms Summerville's expectations were reasonable and that Mr Furtado's attitude was "unprofessional". He states that he later met with Mr Furtado and discussed the situation with him. It was not his understanding that it was his role to ensure the letter that Ms Summerville had sent to Mr Furtado was signed by Mr Furtado. In relation to the allegation that there was a "boy's agreement", he denies that there was ever any agreement between them but he states he could see Mr Furtado's side of the issue following their meeting.

36 When he received a printed copy of an email sent by Mr Furtado to Ms Summerville from another colleague not long after, he had immediately written to Mr Furtado saying that such communications should cease. He considered that that was the end of the matter and did not accept that the harassment alleged by Ms Summerville had escalated.

37 As to the alleged conduct of Mr Furtado: Ms Summerville's complaints about Mr Furtado are also referred to in her original complaint to the Equal Opportunity Commission dated 1 April 2004. Ms Summerville refers to Mr Furtado as the music teacher, and that in

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July 2002 she experienced difficulties with his failure to follow college procedures and complaints from students. For example, she stated:

"Upon consulting with the Vice Principal as to how to handle this, he helped me write a letter for the music teacher to sign saying that he would commit to conventional behaviours as expected from other staff members. When the Vice Principal and the music teacher met to formally sign this letter, it didn't happen. I was asked instead to go with the flow until he left. It sounded like a 'boys club' agreement and the connotation was that I had the problem.

From that point onwards, the music teacher began using condescending, intimidating, rude, suggestive, sexually explicit and sex-based comments at every opportunity, to both myself and my colleague. This was in the form of notes, whiteboard messages and emails (copies of which are available)."

38 Ms Summerville then refers to her request for assistance from the Principal and Vice Principal and notes that;

"they witnessed the messages, I was told 'don't let him wind you up. Just put up with it for another 10 weeks and then he'll be gone'. My colleague was a witness to this statement and to most of the sex-based harassment".

"[A] young female student, then about 18, had complained to me about the treatment she had received on an ongoing basis in the music teacher's class … She had thought that it was her fault she was being treated this way. One thing she and other women had found particularly demeaning was being asked to come dressed as prostitutes or pimps for the second session of the course. They then acted out and sang songs in this vein during class. The Print Cell clerical staff member verified photocopied music and songs to fit with this request by the teacher. When I questioned him and suggested this may (or may not) be more appropriate if it was in context and much later in the course, I was told I knew nothing about music and had sexual inhibitions."

39 In her Statement of Issues, Facts and Contentions filed with the Tribunal on 7 September 2005 and the amended Statement of Issues, Facts and Contentions dated 27 August 2006 and filed 28 August 2006 in relation to the conduct of Mr Furtado, Ms Summerville states:
(Page 15)

"Mr Furtado began a campaign of discrimination and harassment against me, based on my gender. This discrimination and harassment increased and became blatantly derogatory. Communication became overtly sexual and discriminatory.

…

I was first aware students had problems with Stephen Furtado in class when a student brought it to the attention of both myself and Joy Boothman in mid-2001 when he touched her without her approval, …

Whilst I was in the role of Acting Coordinator of the Department in first semester of 2002, it was again brought to my attention that Stephen Furtado was bullying and harassing various students in the Singing for Health classes."

40 In or around May 2002 the college took the decision not to offer the course "Singing for Health" offered by Mr Furtado in the following year. Ms Summerville refers to this and states:

"Mr Furtado wrongfully made the assumption I was responsible for his termination of employment, which was a very clever move by management to focus Mr Furtado's hostility toward me and away from them. Mr Furtado subsequently began intimidating me via emails, verbal taunts, improper use of College photocopying resources, and sexual innuendos on the whiteboard. He did this almost daily, over a three month period. I know it was three months as Mr Joyce, when asked to view one of these messages, before a witness, said: 'Just put up with it for another ten weeks then he'll be gone! Don't let him wind you up!'

41 Mr Furtado sent an email on 7 June 2002 in response to an email from Ms Summerville dated 6 June 2002 . Mr Furtado's email reads:

"Needless to say Amber your response is quite what I expected it, to be a very weak excuse given your idiosyncrasies.

There is no pressure experienced by Brenda at all; it is only your paranoia about executing your duties in a manner befitting your predecessor and you are not even a close second.

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Refrain from your trivialities Amber, focus on things more relaxing like your azaleas and you will benefit.

Yes, you do suffer from Alzheimers when you cannot remember issuing my telephone number to a student. How do you explain Raul ringing me at home?

Do not contact my students at the ungodly hour of 730am otherwise I might have to refer this further.

I do recall you having a panic attack when you had to undertake Joy's position. Perhaps you are ill-equipped to cope with the level of pressure.

I will certainly request copies from Brenda should the situation arise in less than the timeframe and mind your own business and keep out of my affairs.

As I said you obviously do not have enough to occupy your cells so you may have to consider a new title of Petty Officer.

As far as a song is concerned you need to consider these lyrics

'cook their husband's dinner, empty the slops, and generally attend to the domestic affairs for which nature designed them. Meddling in masculine concerns of which they are profoundly ignorant.'

How befitting is that indeed for your behaviour.

Let it rest at that and keep out of my way as your behaviour to date as(sic) been despicable not to mention reprehensible.

If Val shares your view of this situation particularly with the Certificates then you have 'got to her' with your plain stupidity and nagging. Unfortunately for her she is tainted the same as yourself. You were both unreasonable about the Certificates without communication of what you had executed.

DD-WORK OUT WHAT THAT REPRESENTS BECAUSE IT SURELY DOES NOT MEAN 'DOCTOR OF DIVINITY'."

42 In his evidence Mr Furtado stated that "DD" meant diem de deo, lord of lords, God of Gods.

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43 Ms Summerville said that there had been other emails which she stated she had passed on to Mr Joyce but these had not been found.

44 Ms Summerville related two incidents where messages had appeared on a whiteboard located in the PD Department. She attributed the messages to Mr Furtado. She notes:

"In a note on the whiteboard on 12th June, 2002 Stephen Furtado wrote in direct reference to my stay in hospital:

'ANNA'S IN HOSPITAL

Adamant bitter

Asinine(sic) places!'"

Ms Summerville goes on in her submission to state:

"This cryptic message translates to -

Anna's (Amber's) in hospital. Adam Ant bit her ass in nine places."

45 She also says that another message appeared. Her evidence is that:

"In response to a request for staff to nominate venues for staff professional development dated 26 June 2002, Stephen Furtado wrote, on the whiteboard: 'Barbarellas Cuppaware party (an element of fun and frivolity interspersed with magic)'."

46 In relation to the allegations made against him, Mr Furtado's evidence was that from the outset, Ms Summerville had harassed him and picked on him.

47 He stated that allegations of sexual harassment of his students were untrue and that in relation to other complaints by students that Ms Summerville had exaggerated the complaints. He agreed that he had on one occasion given a spontaneous hug, without sexual connotation, to a student who had been upset. He did not consider that at any time his behaviour had been inappropriate. In relation to student complaints, he said that the named student complained about every lecturer. He agreed that he was abrupt, and perhaps stern, but he considered this was not harassment of students.

48 He denied he had ever falsified the class roll to inflate numbers, as alleged by Ms Summerville, and described as false an allegation that he

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had not returned the piano key. He denied that he had stolen books from the staff library or from the office of Ms Summerville.

49 He denied that he had asked students to dress up as pimps and prostitutes, but he agreed that dressing up sometimes allowed students to feel the part and the song that was to be sung was "I don't know how to love him" from Jesus Christ Superstar.

50 He acknowledged that he had received a letter from Ms Summerville in late May 2002 with a list of concerns about work issues and had requested a meeting and later met with the Vice Principal, Mr Joyce, to "put his side of the story". He considered that following the meeting with the Vice Principal in early June 2002, the matter had been resolved.

51 Ms Summerville put to Mr Furtado that, following his meeting with Mr Joyce, that he had come out "fluttering a piece of agreement" (T: 30.10.2006 p 46) and had said that there had been a "boy's agreement". He denied that there had been any such agreement.

52 In relation to the email sent to Ms Summerville on 7 June 2002, he did not regard it as "harassing", although he accepted there were derogatory comments contained in it. He stated he regretted the lack of tact but considered the email was a response to the email from Ms Summerville of 6 June 2002 prodding him for a "sad song". He considered that she had been sarcastic.

53 Mr Furtado denied that the email he sent on 7 June 2002 was typical of what was happening over a period of six months, and that similar things had been said by him to Ms Summerville verbally and that similar things had been sent in emails. He stated that he was confident that there were no other emails and that he was filled with remorse about the email of 7 June 2002.

54 Mr Furtado denied the allegation that he had photocopied material not for use in the college after his course had been discontinued. He stated that he had been photocopying material for a class. He agreed that Ms Summerville had confronted him in the photocopying room.

55 It was put to Mr Furtado by Ms Summerville that after this photocopying incident that his behaviours escalated:

"After the incident in the photocopying room, you still escalated your behaviours later that week, and I was then hospitalised for a week from the 21st to the 25th. You won't remember the

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dates. They won't be significant to you. It was after that that you started the white board notices?" (T: 30.10.2006 p 81)

56 The whiteboard notices are said to have been seen by Ms Summerville on 12 June 2002 ("Anna's in hospital") and by Ms Spinks on 27 June 2002 ("Barbarella's Cuppaware Party"). The note on a document before the Tribunal accepted as a copy of the text of the second whiteboard message is as follows:

("found on 27/6 W/B From previous night 26/ ?")

57 Earlier in her evidence Ms Summerville had stated that the whiteboard message "Anna's in hospital" was a clear reference to her as she had been in hospital. However, this is not consistent with the dates of her hospital admissions being 21 June 2002, 28 June 2002 and 31 July 2002. However, there is an incomplete reference in her medical notes of 14 June 2002 of her general practitioner of "sexual harassment at".

58 Mr Furtado denies that he had written messages on the whiteboard and had not seen the messages. He stated that 20 people had access to the room with the whiteboard and knew the access code to the room.

59 Ms Summerville questioned Mr Furtado about the sale of tapes to students in his class. When questioned about the relevance of this issue to the case before the Tribunal, Ms Summerville summarised her position:

"It wasn't necessarily passive resistance. The selling of tapes: it was his underhand way of doing things behind the scenes, knowing they weren't proper and legal, so he would set up more trouble for me along the way, because as he said, I didn't have the ability to handle the job; so he would put things in my way to make sure I had one hiccup after another. He set about on a deliberate campaign of harassment, which he would not have done to a male teacher, and he would not have done to a co-ordinator. He and I had those conversations, that it was because I was in an acting position, and it was because I wasn't Joy. These are the reasons that he did them. That is sexual harassment. That is sex-based harassment." (T: 30.10.2006 p 65)

60 Mr Furtado denied he was protecting Mr Joyce when he said in his evidence that he had not heard any rumours against him. He denied that he was part of a process of them protecting each other.

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61 He stated he did not feel superior to women and had worked closely with them in his former employment, including as a personal assistant to women in senior positions in the public sector.

62 February 2003 incident: Although not immediately relevant to the matters to be determined by the Tribunal, another workplace incident involving Ms Summerville was referred to in the documents before the Tribunal and became the subject of cross-examination of Ms Summerville and other witnesses.

63 In the material put before the Tribunal, Ms Summerville describes an incident on 6 February 2003 as an "assault" on her by her then immediate manager, Ms Boothman.

64 Ms Summerville sets out what she says happened in relation to this incident in an affidavit dated 16 February 2003. That affidavit refers in part:

"At approximately 7.45 am on Thursday 6 February 2003 I was in my office at the Personal Development Department with JOY BOOTHMAN and a discussion took place between us, after which I walked through the foyer with the intention of going to the classroom next door.

As I walked through the foyer I heard several footsteps behind me as if someone was running. I felt both Joy's hands heavily on my shoulders pulling me up short in my tracks and I was spun around. Confused and not knowing what's happening I found Joy right in front of my face blocking any forward movement. Her hands were raised at me fingers in a gnarled position the veins in her neck pulsating, her teeth clenched.

I felt instant shock and horror at the rage and anger that was occurring. I was frightened and began sobbing without being able to regain control. I went to move into my office to regain my composure and to retreat from this situation. I said words to the effect of 'this can't be happening' You can't do that What the heck was that about?'

I told Joy that what she did constituted abuse and assault and I no longer felt safe with her. She scoffed at this …"

65 Later in her affidavit Ms Summerville notes that she taught a two hour class and that she was experiencing pain in her neck and shoulders
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and made an appointment with her doctor. In her evidence about this incident before the Tribunal, Ms Summerville stated that she had a "torn dress as evidence, ripped from shoulder to armpit." (T: 26.10.2006 p 56)

66 Following the incident, it appears from the documents before the Tribunal that attempts were made to deal with the matter through mediation. However, Ms Summerville considered that after she had reported the incident she was subject to "bullying[,] alienation[,] disempowerment and belittlement" at the college for six weeks. After a period of leave she returned to work in the second term but "lasted 2.5 days and left on sick leave". She did not return to Tuart College.

67 It is understood that following the incident Ms Summerville made a workers' compensation claim which has apparently been the subject of extended proceedings but has now settled.

68 It appears that Ms Summerville experienced some delay in obtaining payments from that claim which prompted a complaint to the Director of the District Office of the Department in January 2004. It was following that complaint that there was a discussion of her allegations of sexual harassment which led to her complaint to the EO Commission.

69 In her evidence before the Tribunal, Ms Summerville asserted that she had not used the "language of sexual harassment" in 2000 and she had not understood what sexual harassment was at that time, although the behaviour of Mr Joyce had made her feel uncomfortable.

70 This is not consistent with a letter written to the Equal Opportunity Commission dated 7 June 2004 in which Ms Summerville relates a conversation she said she had with Mr Joyce in around April 2000 which she asserted had brought the unwelcome behaviour to an end:

"Do you do this to all your women? You're damned lucky in your choice of behaviour here with me because some women would have reported you for sexual harassment in the same circumstances."

71 When questioned about the differences between her two statements and her evidence in the hearing Ms Summerville asserted:

"I have a difficulty with sequencing, dates, times, putting things in sequential order. It's all left brain stuff because I've got lesions in the brain that affect that. This has developed in the past 2 years. So, hence, I rely on the statements that were done

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well before that, because I didn't have this condition then." (T: 25.10.2006 p 50)

72 She stated that she cannot count back or give change out of $10. Her condition made it difficult for her to remember the sequence of events and she could be confused by questioning. The condition had developed in the past 12 - 18 months (T: p 50) and so it had not had an effect on her recall in the earlier statements made. She stated that her earlier statement made by her in relation to conflicting evidence was the reliable account "if that's what I've written, that's what's happened". (T: 25.10.2006 p 52)

73 A report of Dr Jane Fitch dated 6 July 2004 submitted to the Tribunal by Ms Summerville refers to as assessment of Ms Summerville for the purposes the preparation of a medicolegal report. Dr Fitch reports that Ms Summerville "provided h[e]r history lucidly and appropriately. There was no inconsistency in historical details, and her affect over the three different dates of assessment … Mrs Summerville presented as of above average intelligence with very good verbal skills. There was no evidence of cognitive dysfunction".

74 Other witnesses: In addition to the applicant and the respondents, the Tribunal heard oral evidence and received witness statements from a number of other employees of the Department, both past and current, at Tuart College and other employees who gave evidence of the approach taken in respect of policy and practices in relation to equal opportunity matters in the Department. In addition the spouse of Ms Summerville and an officer from Worksafe gave evidence before the Tribunal.

75 Much of the material put to the Tribunal regarding the work practices and administrative arrangements at Tuart College and much of the information about the personal relationships and previous litigation engaged in by the applicant is not relevant to the questions to be determined by the Tribunal. However, we accept the submission that the workers' compensation claim is relevant to the extent that we consider we can draw inferences from inconsistent statements made by Ms Summerville in that proceeding and from what is said to a possible motivation for bringing this proceeding and generally as to the reliability of her evidence.

76 The Tribunal has considered the evidence of all witnesses in reaching the determination in this case. However, it is not necessary to refer to all of the witnesses heard for the purposes of these reasons. We will though refer to some of the key testimony.

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77 Staff at the College: Ms Summerville's contention in her written statement and in her oral evidence that the sexually harassing behaviour of Mr Joyce was well known had been discussed with and corroborated by a number of her colleagues at Tuart College, was not supported by any of the witnesses called by Ms Summerville or by the respondents.

78 Her particular contention that it was "common knowledge among both male and female staff that Mr Joyce "liked to 'touch up' women" was strenuously denied by the witnesses Ms Summerville claimed were able to confirm the allegation.

79 Ms Summerville makes frequent references in her written material before the Tribunal to persons encouraging her to make a complaint or continue with her complaint, including Ms Spinks, Ms Menzies-Mason and Ms Ross. Each of these witnesses told the Tribunal that they had listened to the various complaints and concerns confided in them by Ms Summerville in a supportive way but had not encouraged her or confirmed her suggestions regarding Mr Joyce by disclosing their own experiences of this conduct or knowledge of it. Each of the witnesses denies that they had made statements of this nature to Ms Summerville. There were a number of witnesses who gave similar evidence and it is not necessary to deal with all of them for the purposes of these reasons. The following witnesses are referred to to give some background and flavour to the material before us.

80 Ms Boothman: Ms Boothman denies Ms Summerville ever disclosed sexual harassment or inappropriate conduct by Mr Joyce towards her. In her statement she notes that she had not observed and did not believe Mr Joyce would have entered Ms Summerville's office the number of times alleged by Ms Summerville in her complaint. She states that at no time did she hear sexually related or inappropriate dialogue. She states that it was difficult to hear conversation in Ms Summerville's office as the offices were adjacent. If they wanted to speak (to each other) they generally had to raise their voices.

81 The allegation made by Ms Summerville that Ms Boothman had told her that she had counselled students who had allegedly been harassed by Mr Joyce while he was still teaching was denied. Ms Boothman denies that she had stated that Mr Joyce "did this to all the women". She states that she had never known him to act in such a way and knew of no other person who had made such a complaint. She denies she told Ms Summerville that it was "tricky" for her to deal with the complaints because of the relationship she had with Mr Joyce.

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82 Ms Boothman states that Ms Summerville had told her that she didn't like the jokes or the sense of humour of Mr Joyce, but had not made any other comments. She states that she has known Mr Joyce for many years as a work colleague and denies that she has ever had an intimate relationship with him. She states that she knew and worked with his wife and respected their relationship. She states that she herself is married. She denies that she flirted with Mr Joyce in a telephone call overheard by Ms Haagensen.

83 Ms Boothman related her return to the Department after a period of secondment to another department in early 2003. She states she had felt some discomfort because when advised of her decision not to apply for a permanent position in the Department to which she had been seconded, Ms Summerville had said "What will you do now?". By implication, this suggested to her that she could not return to her substantive position as the Coordinator of the PD Department.

84 In her questioning of Ms Boothman, Ms Summerville put to her that she (Ms Summerville) had not known that Ms Boothman was coming back to the Department and that she had been embarrassed as Ms Boothman had been back working for 5 days and she was still to clean out her desk. Ms Boothman states that she considered that Ms Summerville had been angry with her on her return and their relationship was difficult.

85 Ms Boothman said that in her experience there had been other occasions when Ms Summerville's "perceptions were different from other peoples" and that she had a tendency to exaggerate things.

86 A letter which she described as being in" highly emotive language" was received by Ms Boothman from Ms Summerville in 2001 when she was working part time in the Department. The letter was sent in response to a request that Ms Summerville take an "off campus group" at Koondoola. The letter makes various statements including: "I can't keep going", "my anxiety has been escalating" "I don't feel safe that I'm not going to die" "I feel like I'm dying" and "I really am scared that I won't be around for long.". Ms Boothman's witness statement notes that once Ms Summerville began taking the course that her attitude changed and she expressed her happiness about facilitating the course.

87 Ms Boothman gives a different account of the incident of 6 February 2003. Her version is that as Ms Summerville passed her while they were having a disagreement in the office that she had placed both

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hands on Ms Summerville's shoulders. She states she did not grab her or restrain her and had not run up behind her. She had apologised immediately when Ms Summerville had reacted tearfully and felt shocked that Ms Summerville had had "such an extreme reaction". She stated that Ms Summerville had said that "you shouldn't touch an abused person from behind, that's triggered something for me". She said that she was stunned by this as she had not understood Ms Summerville to have been abused. Ms Boothman said she had a clear memory of this and had written a report in the days following the incident. She described in her witness statement that the description by Ms Summerville of this event was "completely exaggerated and disproportionate" to what had occurred. She said that Ms Summerville's workers' compensation claim resulted from this incident. She considered that the physical injuries said to have been suffered by Ms Summerville, and her reaction were "grossly exaggerated".

88 In cross-examination by Ms Summerville it was put to Ms Boothman "That's when you reached out and grabbed me and stopped me in my tracks as I went past you?". (T: 30.10.2006 p 172).

89 This varies from the very detailed account of the alleged assault given by Ms Summerville in the affidavit and in some details appears closer to the account of Ms Boothman.

90 Ms Summerville put to Ms Boothman that she was lying about the incident in 2003 and that the events had occurred as she had reported them because she "could not have had the injuries" that she suffered had the incident not occurred. Ms Summerville stated that "everybody colluded" in their evidence because of their relationships. Ms Boothman denies this.

91 Ms Summerville asked Ms Boothman what motivation could she (Ms Summerville) have for pursuing the allegations in relation to the alleged assault. Ms Boothman responded that she considered that a possible reason would be that Ms Summerville would take her job if she was dismissed or that Ms Summerville "would get money from it".

92 Ms Boothman states that she had received "hate letters" in early 2005 from Ms Summerville and Ms Summerville's husband following the finalisation of Ms Summerville workers' compensation claim. The letters are highly critical of Ms Boothman and one letter concludes with the words, "the day when you have to account for these actions is yet to come".

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93 Ms Robyn Menzies-Mason: Ms Robyn Menzies-Mason worked with Ms Summerville whilst Ms Summerville was Acting Coordinator in the PD Department.

94 Ms Summerville put to Ms Menzies-Mason that she had said to her in February 2002 "with hand gestures, details of how Mr Joyce used to touch my neckline and suggest I undo a button or two on my shirt". Ms Menzies-Mason stated that this did not happen, that it was an absolutely untrue statement.

95 Ms Menzies-Mason stated she had a "myriad" of conversations with Ms Summerville which went on "day after day". She stated she remembered trying to be supportive of Ms Summerville and that there had been conversations that included "nasty, gossipy girl stuff". She stated that during the time she was there "Ms Summerville was 'going through a very difficult time and [she] 'constantly, perpetually, consistently unpacked difficulties that [she] had with all of the staff, and I listened".

96 Ms Menzies-Mason stated that she had tried to support Ms Summerville during this period, something which she now regretted since it had resulted in her being called to give evidence in this case. She stated that there may have been one conversation about Mr Joyce in which she said that he had once, many years before, straightened her collar in a manner which she had interpreted as "neatening her up" before class. She stated that it had nothing to do with buttons and refuted the statements attributed to her by Ms Summerville.

97 Ms Summerville put to her that she had changed her story because of her friendship with the sister of Ms Boothman. Ms Menzies-Mason denies that this was the case.

98 Ms Valerie Spinks: Ms Spinks is an employee at Tuart College and was in 2002 working in the second position to Ms Summerville, when she was Acting Coordinator. Ms Spinks denies strongly that she had said to Ms Summerville that Mr Joyce was "more than friendly" to her while they were both working in the PD Department . She states that it was very uncommon to have Mr Joyce in the PD Department. She states that she did not believe Ms Summerville had told her that Mr Joyce has touched her in 2000 as she would have been shocked if such a thing had been said as it " would have been totally out of character".

99 When it was put to her, Ms Spinks did not recall Ms Summerville telling her that Mr Joyce had touched her only in the presence of

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Ms Boothman and that she had no difficulty being alone with him in his office.

100 Ms Spinks said she did have a vague recollection of Ms Summerville using the words "sexual harassment," "in passing" in relation to Mr Joyce but denies that she had said she had expressed any concerns to Ms Summerville in this regard. She states that she had been quizzed by Ms Summerville about Mr Joyce standing close to people and touching them when he spoke to them. She had responded that Mr Joyce had spoken to her closely and had touched her shoulder but had been shocked when Ms Summerville had responded immediately "That's sexual harassment".

101 She concedes she had been frustrated and angry with Mr Joyce during the period in question about a pay issue but had confronted him about this directly at the time and had understood that the matter was out of his hands.

102 Ms Spinks denies that she had not made a complaint about sexual harassment because she had too much to lose, that is, that she had a fear about losing her job. She said she had no fear about losing her job and if she felt something needed to be said she would not be silent.

103 It was put to Ms Spinks by Ms Summerville that she had been Ms Summerville's strongest supporter, and had been encouraging when they worked together, but had now changed her story. According to Ms Summerville, she had been the "main reason I kept going" following the alleged assault incident in 2003. Ms Spinks said she has listened to "long conversations" but had not encouraged Ms Summerville. She described herself as being a good listener. She had not discouraged Ms Summerville because she was "intent" on what she was doing. Ms Spinks stated that she had left the second position because she "had had enough" working in that position. She had wanted to discontinue the working relationship with Ms Summerville.

104 She denies that she had changed her story from 2003 because she had been assured of work at the College.

105 Ms Summerville put to Ms Spinks that Ms Spinks had kept information from her during their relationship, including that she had been employed at Tuart College since the 1980's and that she had a neighbourly connection with Mr Joyce through her mother-in-law. Ms Spinks responded that it did not come up. Ms Summerville put to Ms Spinks that she had been:

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"Keeping information from me that would have been pertinent, but also relaying information, as a good listener, to the other side. So, in fact, playing the role of a double agent." (T: 31.10.2006 p 9)

106 Ms Spinks denies this saying it is "totally absurd".

107 Ms Spinks acknowledges that cards and two letters she had given to Ms Summerville had been returned to her with a letter from Ms Summerville which she had considered to be threatening in parts, in that it had referred to "karma" and that "she had sold her soul to Tuart College".

108 In relation to Mr Furtado, Ms Spinks confirms that there had been complaints and a high attrition rate from his class and that Ms Summerville had "been on his side".

109 Ms Spinks remembers a message appearing on the whiteboard but could not understand it and her recollection is that Ms Summerville took it home to be deciphered by her husband. She considered that the writing on the whiteboard was "nonsense". She acknowledges a document which was accepted as a copied version of the second whiteboard message was in her printing but states she did not have an independent recollection of it. She states she found Stephen Furtado abrupt, blunt and rude at times. She described emails received from Mr Furtado as "aggressive" and recalls being shown two emails from him by Ms Summerville.

110 Ms Brenda Izett: Ms Brenda Izett is the Grade 1 School Officer operating the photocopying area in the Print Cell at the college. She denies that she had been told by Ms Summerville that Mr Joyce had been gyrating in the Print Cell. Her evidence was that she had never heard of Mr Joyce behaving in a sexually harassing manner to anyone or anything.

111 She denies that she had alerted Ms Summerville to Mr Furtado conducting a "pimps and prostitutes" session in the music class or that he was photocopying inappropriate papers in the photocopy room as was alleged by Ms Summerville. Rather, she states that it was Ms Summerville who had told her that Mr Furtado's class were being asked to dress as pimps and prostitutes and that this was highly inappropriate. Ms Izett's evidence is that she did not consider any of the material she had photocopied for Mr Furtado to be inappropriate. She states that she considered that Ms Summerville had a tendency to "overdramatise" and gave an example of when her (Ms Izett's) handbag

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had been stolen. Several days later Ms Summerville had been adamant that she should get counselling.

112 Helen Tyler and Karen Allen: Ms Helen Tyler and Ms Karen Allen are employed as a library officers at Tuart College and were students in one of Mr Furtado's classes in 2002 and were said by Ms Summerville to have complained to Ms Summerville about the treatment of a female student by Mr Furtado.

113 Ms Tyler's evidence was that she observed Mr Furtado speaking to a student in a sarcastic and impatient manner and that she had spoken to the student about this and suggested that she speak to someone in the College. She denies that she had ever told anyone that Stephen Furtado had sexually harassed anyone in his class.

114 Ms Allen did not recall anything of a sexual nature or sexual harassment occurring in the class and said that in her view the treatment of the student, which she considered "insensitive" would have been the same regardless of gender.

115 Ms Kaye Ross: Ms Ross is an employee of Tuart College and stated run into she had met Ms Summerville in a shopping centre in 2003 and spoke to her for about 30 minutes. She recalls that Ms Summerville had told her that she had left work after an assault and subsequent bullying at the college. Ms Ross denies that the conversation had turned to talking about Mr Joyce touching Ms Summerville. She states that she did not believe Ms Summerville had told her this as she would have been shocked at it was quite out of character for Mr Joyce in all her dealings with him. Ms Summerville put to the witness that "it didn't ever happen with me alone, it was only in the presence of Joy".

116 Ms Ross denies giving Ms Summerville the names and telephone numbers of other staff who had similar experiences. Ms Summerville could not now remember the woman's name but identified the other person as Mr Philip Ellery. Ms Ross states that she could not have given Ms Summerville Mr Ellery's number as she did not know it. She understood him to have worked at Tuart College in a different department from her but had since retired. She said she may have given Ms Summerville her telephone number but could not recall doing so. She did not give permission to Ms Summerville to use her name in her sexual harassment claim.

117 Mr Philip Ellery: Mr Ellery states that he had had two telephone conversations with Ms Summerville after his retirement from Tuart

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College. He had met her on several occasions at the College. He acknowledges that during the time he had worked at Tuart College he had been subject to bullying but by the time he left he had received an apology and was on good terms with staff and management at the College.

118 He states that his first conversation with Ms Summerville had occurred to the best of his recollection around 2004 and that she had not mentioned allegations of sexual harassment regarding Mr Joyce. It was not until a second telephone conversation in 2005 that Mr Joyce's name was mentioned and he was surprised to hear it. He denies encouraging Ms Summerville and said he had merely been "polite" and had listened to her concerns. He states he did not give her permission to use his name in relation to her claims.

119 Mr David Torr: Mr Torr is the Acting Senior Inspector and Scientific Officer within the Health and Hazards Branch at Worksafe. Mr Torr had received an inquiry from Ms Summerville regarding alleged bullying and harassment at Tuart College. He stated he had first met her in November 2003 and had many meetings with her over the next 1 and a half to 2 years. He states he remembered Ms Summerville mentioning on "numerous occasions about possible sexual harassment" by Mr Joyce and about another teacher. She had mentioned events "around a photocopier "innuendo's and verbal matters". He thought that she had mentioned "physical matters" and "being touched" but could not recall if this was regarding Mr Joyce or the other person. The information was not considered to be part of the jurisdiction of Worksafe and he did not investigate the allegations. Mr Torr stated that he indicated to Ms Summerville that the Equal Opportunity Commission was the appropriate place to take these matters.

120 Ms Haagensen: Ms Haagensen who had formerly been in the "second position" in the PD Department gave evidence of her collegial relationship with Ms Summerville which she described as "fantastic". Ms Haagensen stated that she had been in Mr Joyce's office when he had taken a telephone call from someone who he later identified as Ms Boothman. She stated that she could not remember the words said in the conversation but that he seemed to be talking to an intimate and she was embarrassed to be there. She agreed that there had not been any reference to sex in the conversation.

121 Student evidence: In addition to the evidence of Ms Tyler and Ms Allen referred to above there were a number of witness statements before the Tribunal from students of Mr Furtado and one student of

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Mr Furtado gave evidence by telephone link. None of the witness statements supported the contention that Mr Furtado sexually harassed his students.

Findings

122 As noted above, much of the material covered by the applicant in her evidence, in her cross-examination of other witnesses and in her submissions did not relate to the matters which the Tribunal must decide, that is, whether Ms Summerville had been subject to sexual harassment by Mr Joyce and sexual discrimination and sexual harassment by Mr Furtado within the meaning of the EO Act.

123 To make out the claim of sexual harassment in relation to Mr Joyce and Mr Furtado, Ms Summerville must establish that each made an unwelcome sexual advance or a request for sexual favours, or engaged in unwelcome conduct of a sexual nature in relation to her and further that she had reasonable grounds for believing that rejecting the advance or objecting to the conduct would disadvantage her in her employment, or that she was in fact disadvantaged: See Ashton v Wall & Anor (1992) EOC 92-447 .

124 It is for Ms Summerville to make out her case on the balance of probabilities. In this regard the standard of proof is the so-called 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 afford the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J, cited with approval in Hardy v Kelly & Anor (1991) EOC 92-369 EO Bd (Vic) at 78,560

125 We accept that sexual harassment when it does occur in the workplace often occurs without witnesses and in circumstances which undermine the security and confidence of the victim such that there may be a reluctance to complain for fear of workplace consequences.

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126 Thus in the circumstances where there are no witnesses to events and complete denials of statements attributed to others, the credibility of Ms Summerville and the respondents must be closely scrutinised.

127 For the following reasons the Tribunal is not satisfied that the complaints of the Ms Summerville are made out.

128 In assessing the evidence before the Tribunal it is apparent that the allegations made by Ms Summerville against both Mr Joyce and Mr Furtado are vague and ill defined and her evidence is often inconsistent.

129 In relation to the allegations against both men the evidence of Ms Summerville changed over time, even in her direct evidence and submissions before the Tribunal.

130 A number of witnesses refute the statements attributed to them by Ms Summerville. When confronted by their denials Ms Summerville asks the Tribunal to accept that all the witnesses have lied, changed their stories to gain some benefit or have colluded in the evidence they have given to the Tribunal. Ms Summerville also suggests that the State Solicitor's Office has in some way been complicit in this. These are very serious allegations and none of the evidence that we have heard or seen supports such a conclusion.

131 There are a number of examples of inconsistencies between Ms Summerville's earlier statements and her evidence given regarding a number of matters. We do not accept the proposition put by Ms Summerville that she is cognitively impaired and this is the explanation for inconsistencies in her statements. No medical evidence was put to the Tribunal to this effect and Ms Summerville's careful presentation before the Tribunal, her cross-examination of witnesses and her opening and closing submissions do not support such a conclusion. Nor do we accept that Ms Summerville simply became confused about events due to the lapse of time. She vehemently denies that she had any difficulty recalling events and rejected any suggestion that her recollection of events was other than entirely accurate. Ms Summerville submitted that any inconsistencies were trivial or not germane to the case and that, indeed, the number of inconsistencies should lead the Tribunal to the conclusion that her allegations were not contrived. We do not find this submission persuasive.

132 For example, Ms Summerville’s evidence in relation to the February 2003 incident appears to have evolved over the intervening

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period with additional aspects appearing in later accounts that were not documented in more contemporary accounts recorded by Ms Summerville, Ms Boothman and the mediator in 2003.

133 An example of this is the addition of references to a "ripped dress" which Ms Summerville stated in the hearing had been "torn from shoulder to armpit" (T: 26.10.2006 p 56).

134 The changes in the statements also appears to occur in relation to the allegations of sexual harassment by Mr Joyce with augmentation of the complaint in later accounts such as the allegation that Mr Joyce had looked at her "genital area" which did not appear in the earlier statement.

135 Equally, in relation to the allegations about Mr Furtado, the lack of particularity about allegations such as the "verbal taunts," the white board messages and the emails said to have been received over a period of 6 months in one account and starting after the photocopying incident in another, lead to the conclusion that Ms Summerville's account of these events is unreliable.

136 The conflicting accounts of the February 2003 incident bear on the credibility of Ms Summerville in the current proceedings. It may have other significance in that it appears from the tenor of her evidence and her submissions throughout the hearing and in the numerous documents received by the Tribunal in this matter that Ms Boothman is the focus of her animosity.

137 The allegation of Ms Summerville is that Mr Joyce sexually harassed her, engaged in unwelcome conduct of a sexual nature in relation to her and that she had reasonable grounds for believing that taking objection to the conduct would disadvantage her in connection with her employment.

138 The evidence of Ms Summerville that she was touched by Mr Joyce inappropriately in her office in 2000 is vague and lacking particularity. The number of times this is said to have occurred is uncertain, even to Ms Summerville. Her account has varied over time from between 3 to 12 occasions. It is not referred to in her affidavit in support of her workers' compensation claim made in March 2003. It is not referred to in a transcript of interview she had with an officer of the Anti Corruption Commission in 2003 although allegations are made about Mr Joyce in relation to other persons in that interview. She did refer to sexual harassment in her many interviews with Mr Torr after November 2003 but Mr Torr is unsure whether she had referred to Mr Joyce or to another teacher.

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139 There is a reference in her doctor's notes in 2002 to sexual harassment, presumably at work, but we conclude that this is not a reference to Mr Joyce.

140 The assertion at the hearing that she was not using the "language of sexual harassment" at the time in 2000 that these events are said to have occurred appears contrived and is unconvincing to explain the delay in bringing her complaint.

141 Witness after witness denied the allegations that Ms Summerville had disclosed inappropriate conduct by Mr Joyce to them. None corroborated the suggestion that it was common knowledge that he "did this to all women". A number of witnesses including Ms Spinks, Ms Izett, Ms Ross, Ms Menzies-Mason and Ms Boothman refuted this contention. We accept each of them as credible, reliable, witnesses of truth. Some stated that this was out of character as they knew Mr Joyce. It was not simply the number of witnesses who refuted Ms Summerville's evidence but their demeanour, their directness, and their general authenticity. The demeanour of Ms Summerville, on the other hand, and the many inconsistencies in her evidence which on their own may not have been significant but when taken together did bear on her credibility and led to the conclusion that her evidence simply cannot be relied on.

142 In her written response dated 23 February 2005 to the Commission (Exhibit 1 at page 79) following the dismissal of her complaint, Ms Summerville stated that there were 100 witnesses available to testify to Mr Joyce's "sexual mishandling of the women and girls" and yet Ms Summerville did not call these witnesses. It appears that this may be a further example of Ms Summerville's tendency to exaggerate her claims. None of the witnesses actually called supported Ms Summerville's account of events.

143 In her final submission to the Tribunal, Ms Summerville contends that the Equal Opportunity Commission believed the actions of Mr Joyce constituted sexual harassment (T: 17.11.2006 p 100). This is simply not the case. In fact, Ms Summerville's complaint was dismissed by the Commissioner as lacking in substance.

144 All the witnesses called (other than Ms Haagensen) totally refuted Ms Summerville's version of events. The evidence of Ms Haagensen is not related or relevant to the alleged sexual harassment of Ms Summerville by Mr Joyce. At best, it is her opinion that the tone of a one sided telephone call she overheard, was to "an intimate". The parties

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to that telephone call deny that this was the character of their relationship and it is not necessary to take this issue any further as it is not relevant to the conduct said to have been in relation to Ms Summerville.

145 What emerged from the totality of the evidence is that Ms Summerville is a person prone to exaggeration, who misinterprets events and relationships and whose accounts of events concerning her own interests cannot be relied upon.

146 The Tribunal had before it an example of the propensity of Ms Summerville to exaggerate and misinterpret events when she described conduct of Mr Joyce at a directions hearing in the Tribunal as akin to sexual harassment of the Assistant State Solicitor, when he touched her on her back or on her shoulder when he spoke to her to give her instructions. Ms Summerville acknowledged at the final hearing that she had said in the course of the directions hearing that Mr Joyce was "doing it again". She stated that "This is what this case is about".

147 Although not relevant to the substantive matters before the Tribunal, considerable time was spent in cross-examination by Ms Summerville regarding Ms Boothman's character and her relationship with Ms Summerville before and after the alleged assault incident.

148 In relation to this incident, the Tribunal does not accept Ms Summerville’s version of events. Her evidence about this incident was inconsistent even within the oral evidence she gave to the Tribunal over the 6 days of hearing. Her evidence in the hearing that her dress was torn is implausible given the surrounding circumstances that she taught a 2 hour class following the incident and that no previous note had been made of this, especially in the workers' compensation context where it may have been relevant.

149 The Tribunal was left in little doubt from Ms Summerville's presentation to the Tribunal taken as a whole that Ms Boothman is and has been the subject of Ms Summerville's intense feelings nearly as much as Mr Joyce. It was Ms Boothman to whom the touching was said to have been reported which occurred only in her presence. Ms Summerville describes a "power play" between Mr Joyce and Ms Boothman both in relation to the touching and the allegations of the "neck nuzzling" which was said to be directed at Ms Summerville. Even in relation to her cross-examination of Mr Furtado, questions were put to him in relation to Ms Boothman even though she had not been in the Department at the relevant time. Ms Summerville's comment to Mr Furtado is indicative of

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her attitude; that he would not have acted in the way he had if she had been a "man, been permanent or had been Joy".

150 There are strong grounds to think that Ms Summerville is deeply resentful of Ms Boothman, believing her responsible for her displacement from the coordinator's position, highly critical and perhaps envious of her easy working relationships with other staff.

151 Whatever the background to the bringing of the application, and it is not necessary for us to form a view about this, the Tribunal must determine it fairly and according to the substantial merits of the case.

152 When confronted with the unsupportive evidence of the witnesses, Ms Summerville asserts that all the witnesses are colluding and have changed their stories either because of promises of work, or some other benefit, or to protect the college or because of close relationships between the witnesses. She asserts one former work colleague and friend was a "double agent" and that there was an organised conspiracy against her, describing it as "workplace mobbing".

153 We found nothing to support the contention that witnesses colluded or had changed their stories for one reason of another, as asserted by Ms Summerville. Indeed we found Ms Summerville's account of key events often to be implausible and unreliable.

154 In relation to the allegations made in respect of Mr Joyce we are not satisfied that the events as described by Ms Summerville ever took place.

155 Ms Summerville did not present as an accurate and careful witness. Her evidence contained numerous inconsistencies and she appeared to be driven by a need for vindication of her position. On the other hand, Mr Joyce and the other witnesses from Tuart College impressed the Tribunal as conscientious public servants. More than one witness said the allegations made by Ms Summerville were "out of character" with what they knew of Mr Joyce. We consider that we are entitled to accept the evidence of Mr Joyce that no other complaints had been made about him and of the evidence of other witnesses of his good character in assessing his credit: Thorneycroft v Scothern (1992) EOC 92-471 EO Bd (Vic) at 79,351

156 The witnesses who had worked directly with Ms Summerville appeared to have attempted to be supportive of a person who it must be said appears to have been difficult to work with. Their personal support

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has been misconstrued by her to be corroboration of her assertions and support for her activities.

157 Ms Summerville's own evidence is that she did not regard the relationship she said existed between Ms Boothman and Mr Joyce as sexual but "flirtatious" and that Mr Joyce ignored her when the alleged "nuzzling" incident occurred. Her evidence in her earlier statement on which she says the Tribunal is to rely is that Mr Joyce did not speak to her or engage her in relation to the photocopier incident.

158 In respect of the alleged touching and the comments made about red hair if such conduct occurred, it might in some circumstances amount to sexual harassment. However, in this case the elements are not made out. Ms Summerville does not describe the contact as sexual. On her own account she complained to the alleged perpetrator and the conduct ceased. She describes a good working relationship thereafter. If her account were to be accepted as the evidence (which we do not accept) it would still be difficult to identify any detriment suffered by Ms Summerville.

159 In relation to Mr Furtado, Ms Summerville alleges that he discriminated against her by treating her less favourably than a person of the opposite sex and that he sexually harassed her.

160 Further she contends that, as Mr Joyce had been informed of Mr Furtado's actions that he permitted these acts and said words that threatened to subject her to detriment in her employment. She also contends that the Department is vicariously liable as the employer of both Mr Joyce and Mr Furtado.

161 Even if all the allegations made in respect of Mr Furtado, of insubordination, failure to follow college practices and policies about photocopying and such like, rudeness to staff or students, asking students to dress up as pimps and prostitutes, writing cryptic messages on a whiteboard and offensive emails, were substantiated, they do not lead to a finding that Ms Summerville had been sexually harassed by Mr Furtado.

162 As noted above, we have treated these allegations as complaints of sexual harassment but will deal briefly with the allegation of sexual discrimination made by Ms Summerville only to say that we accept the submission that this part of Ms Summerville's complaint is misconceived. Mr Furtado was not the employer of Ms Summerville and had no role in relation to her conditions and cannot be brought within the meaning of s 11 of the EO Act.

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163 In relation to her complaint of sexual harassment, the email of 7 June 2002 was, to put it in Ms Summerville's words, "the worst it got". Ms Summerville did not have a fear of objecting to this email (and other behaviours said to be harassment). She quite properly brought this to the attention of management and a letter was written by Mr Joyce to Mr Furtado asking him to cease this type of communication. Ms Summerville complained to Mr Hawthorne and appeared to have no difficulty in objecting to Mr Furtado's conduct. We accept the evidence of Mr Joyce that no other emails were referred to him. We think it more probable than not that there were no other emails other than the ones provided to the Tribunal.

164 While the email of 7 June 2002 was framed in sexist, offensive and unprofessional language and a seemingly disproportionate response to the email of 6 June 2002 sent by Ms Summerville it is not of a "sexual nature" which would bring it within the meaning of sexual harassment. We accept that the type of language used in the email may in some circumstances amount to discriminatory conduct: Chaisty v City of Perth(2004) EOC 93-323 EO Tib (WA) at 73,318. However, in this case Ms Summerville has failed to establish that she suffered a detriment or feared that by complaining about the conduct she would suffer some disadvantage in her employment.

165 The tone of the email of 7 June suggests that Mr Furtado has the capacity to act in an offensive and inappropriate way to a work colleague. Ms Summerville states in her evidence that Mr Furtado made verbal comments to her along the lines of the 7 June email that constituted sexual harassment. She states that her work colleague (Ms Spinks) has witnessed most of the harassment. Ms Spinks evidence was that Mr Furtado had not sexually harassed her, although she conceded he was rude to her. Where the evidence of Ms Summerville and Ms Spinks conflicts we prefer the evidence of Ms Spinks.

166 In relation to the white board messages; there is no evidence to link Mr Furtado to the messages. The whiteboard notices are said to have been seen by Ms Summerville on 12 June 2002 ("Anna's in hospital") and by Ms Spinks on 27 June 2002 ("Barbarella's Cuppaware Party"). Earlier in her evidence Ms Summerville had stated that the whiteboard message "Anna's in hospital" was a clear reference to her as she had been in hospital. This is not consistent with the dates of her hospital admissions being 21 June 2002, 28 June 2002 and 31 July 2002.

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167 Even if it could be substantiated that Mr Furtado had written the messages and directed them to Ms Summerville the content is unclear and falls far short of what could be considered sexual content.

168 All the other allegations regarding the complaints of students and high attrition rates attributable to his behaviour are irrelevant to the questions before us, as is the allegation, which is denied, that he sexually harassed students. The only example which was provided which could in any way be construed as "sexual," was that he is said to have inappropriately touched a student by hugging her. Mr Furtado denied that this had any sexual connotation and although the student considered that it made her uncomfortable this has no bearing on the allegations made by Ms Summerville that he sexually harassed her.

169 We accept that Mr Furtado was probably rude, insubordinate and resistant to Ms Summerville’s attempts to manage him. Even if the evidence supported findings that Mr Furtado was insubordinate, none of this amounts to sexual harassment or sex discrimination.

170 The final point to make in relation to the conduct of Mr Furtado is that even if it had been harassment of a sexual nature to bring it under s 24(3) of the EO Act, Mr Furtado was subordinate to Ms Summerville at the time of the "campaign" he is said to have waged against her. Following the advice of the discontinuation of his course in May 2002 or at any other time, Ms Summerville cannot have had a reasonable belief that complaining about his conduct, as she did on more than one occasion on her own evidence, would lead to a detriment to her in her employment.

Position of the Department

171 As the Tribunal has determined that allegations against Mr Joyce and Mr Furtado as the second and third respondents in this case have not been made out and the complaints should be dismissed it follows that there is no vicarious liability on the part of the Department of Education.

Conclusion and Orders

172 For the reasons now stated, on 17 November 2005 the Tribunal dismissed the application of Ms Summerville and made the following orders:

1. The proceedings against each respondent are dismissed.

2. The Tribunal will publish detailed written reasons for its decision within 28 days.

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3. The respondents will be at liberty to apply for any consequential orders following the delivery of the written reasons for decision.

4. The suppression order made on the first day of the hearing is now discharged.

I certify that this and the preceding [172] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT

Summerville and Department of Education and Training & Ors

[2006] WASAT 368

15 DECEMBER 2006

SUMMERVILLE and DEPARTMENT OF EDUCATION & ORS [2006] WASAT 368