TN v BF
[2015] FCCA 1497
•12 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TN v BF & ANOR | [2015] FCCA 1497 |
| Catchwords: HUMAN RIGHTS – Application alleging unlawful discrimination under s.46PO if the Australian Human Rights Commission Act 1986 (Cth) based on alleged contravention of ss.5, 14(2), 28A and 28B(2) of the Sex Discrimination Act 1984 (Cth) – applicant claimed to be sexually harassed in workplace and dismissed from her employment after reporting harassment – whether alleged harassment was unwelcomed – credibility issues in respect of witnesses – failure to call a number of witnesses who could provide corroborative evidence – Jones v Dunkel inferences – application dismissed. |
| Legislation: Anti-Discrimination Act 1977 (NSW), s.24(1) Cross on Evidence, Seven Australian Edition, J. D. Heydon, Lexis Nexis Butterworths American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (DSM-5), May 2013 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Gaskell v Denkas Building Services Pty Ltd [2008] NSWCA 35 Leslie v Graham [2002] FCA 32 Watson v Foxman & Ors (1995) 49 NSWLR 315 |
| Applicant: | TN |
| First Respondent: | BF |
| Second Respondent: | AB |
| File Number: | SYG 1197 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 23, 24, 25 October 2013 |
| Date of Last Submission: | 28 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr M K Rollinson |
| Solicitors for the Applicant: | Tran Solicitors |
| Counsel for the Respondents: | Mr A C Canceri |
| Solicitors for the Respondents: | CMC Lawyers |
ORDERS
The Application filed on 31 May 2012 be dismissed.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1197 of 2012
| TN |
Applicant
And
| BF |
First Respondent
| AB |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 31 May 2012 the applicant, “TN”, filed an application in this Court alleging unlawful discrimination under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) against the first respondent, “BF” (a business) (the “Workplace”), and the second respondent, “AB” (an officer of BF), (together, the “Respondents”). The unlawful discrimination alleged by TN under the Sex Discrimination Act 1984 (Cth) (the “Sex Discrimination Act”) relates to allegations of discrimination on the basis of her sex and that she was sexually harassed during the course of her employment with the first respondent. A notice of termination was issued by the Australian Human Rights Commission on 30 April 2012.
On 13 March 2013 the lawyers for the Respondents filed an application in a case. This application was amended in Court on 22 March 2013. On 12 July 2013 I made non-publication orders. I also ordered that “VB” be appointed as litigation guardian to AB.
Pseudonyms
As indicated above, in the non-publication orders a number of the parties to these proceedings were given pseudonyms, however there are a number of other persons identified in these proceedings which, if identified, would destroy the purpose of the pseudonyms already granted. Consequently, any other staff or family member that needs to be identified within the proceedings will also be given a pseudonym. To assist in the understanding of the nature of the issues relevant to the proceedings where an individual is identified by a pseudonym a reference will be made to the relevance to that individual in their relationship to the applicant or the Respondents.
Statement of Claim
A Statement of Claim was filed by an order made by his Honour Smith FM on 29 June 2012 and states the following:
1. The applicant [TN] is a woman aged 28 years, born on 17 February 1984.
2. The First Respondent [BF] has at all material times been an incorporated company liable to be sued.
3. The Second Respondent [AB] has at all material times been an officer, employee or agent for [BF].
4. On or about 23 or 24 April 2009, [BF] engaged [TN] as an employee, full-time Sales Assistant to work at [BF]’s office and showrooms at [a Sydney Suburb], NSW (“workplace”).
5. [TN] was engaged by [AB], after an interview between [AB] and other staff of [BF] and [TN] at the Workplace.
6. [TN] attended the workplace on 27 April 2009 and commenced the duties of her employment.
7. On or about 29 April 2009 while [TN] was in attendance at the workplace, [AB] called [TN] into an office, which [AB] usually occupied (“the office”) the only persons in the office then being [AB] and [TN].
8. On that occasion, [AB]:
(a) asked whether [TN] ever touched herself in a sexual manner;
(b) asked [TN] to remove her stockings, which she declined to do;
(c) turned on a television set and began to watch it;
(d) said that the programs having a sexual content were on the television;
(e) invited [TN] to watch the television, which she declined to do;
(f) masturbated himself while in [TN]’s presence.
The above conduct continued until [TN] asked to be excused, and left the office.
9. On or about 30 April 2009, while [TN] was in attendance at the Workplace, [AB];
(a) asked [TN] to come to dinner with him at a restaurant; and
(b) said that after dinner [TN] would not go home, but she and he would rent a room upstairs.
[TN] declined [AB]’s proposal and left the office.
10. On 1 May 2009, [TN] married her husband, [TN’s husband]. [TN] had informed [AB] before that day that she would be absent from work on that day because of her wedding.
11. On 2 May 2009, while [TN] was in the office at the workplace, [AB] and a female employee of [BF] called [AM] being present; [AB]:
(a) told [TN] and [AM] to move close to watch other and to touch each other;
(b) moved himself close to where [TN] was sitting;
(c) asked [TN] to remove her stockings;
(d) placed his hand on her legs.
[TN] did not comply with [AB]’s instructions, and left the office.
12. On 2 May, [AB];
(a) called [TN] into the office, he only being present;
(b) Whilst speaking to her in the office, masturbated himself.
[TN] left the office.
13. On or about 3 May 2009, in the office at the workplace, [AM] also being present, [AB];
(a) called [TN] and [AM] into the office;
(b) Told them to sit on the lounge in the office;
(c) Lowered the zipper on the front of his trousers;
(d) Told [TN] to open her legs and touch herself in the genital area;
(e) Told [AM] to open her legs and to touch [TN] in the genital area;
(f) Masturbated himself.
[TN] and [AM] did not comply with [AB]’s demands and left the office.
14. On or about 4 May 2009, at the workplace, [GB] [a son of AB]an employee of [BF], told [TN] and [EW], another employee who was senior to her and who had been instructing her in her duties, that [AB] did not wish [TN] and [EW] to serve customers together.
15. Later on that day, 4 May:
(a) [AB] asked [TN] whether [EW] had touched her sexually. TN protested at this question;
(b) [MB], the son of [AB], said to [TN] that if she did not like it she could leave their employ;
(c) [TN] complained to [MB] about the sexual behaviour of [AB] towards her;
(d) [MB] told her to leave the workplace, and summoned the police when she did not;
(e) After the discussion involving [TN], her husband, [AB] and the police officers, [TN] left the office;
16. By the events of 4 May, [TN] was constructively dismissed from her employment.
17. The above conduct comprised unlawful discrimination in employment against [TN] by [BF] by its employees and agents including [BF], and by [AB] himself, contrary to ss.5 and 14(2), Sex Discrimination Act 1984, and to sexually harassment of [TN] by each of those persons, contrary to ss 21A and 28B(1) and (2) of that Act.
18. Further, [BF] is vicariously liable for that contact by AB, under s.106 of the Act.
19. By reason of the above, TN has suffered injury, loss and damage.
Particulars of Injuries Received
Psychological injury – Chronic Adjustment disorder with depressed moods, developed since injury in the course of employment in April – May 2009.
Shock, included from suicide attempt on 4 May 2009, caused by mental distress.
Particulars of Continuing Disabilities
1. Inability to engage in paid work;
2. Difficulty in undertaking activities in daily life, including care of minor child.
Particulars of Loss of Income
[TN] has been unable to engage in paid work since the injury and termination of her employment by [BF] in May 2009. She claims past loss of income at the net of tax equivalent of $762 gpw (pre-injury wage) from May 2009 to the present; and
Continuing loss of income at the net of tax equivalent of $800 gpw (allowing for probable wage increase but for the injury).
Particulars of any other amounts claimed
Past medical treatment- Medicare details to be obtained
Hospital – admission to Liverpool Hospital for 7 days, costs to be obtained.
Past chemist expenses – about $20 pw and continuing in the future.
Future Medical – 12 months course of psychiatric treatment, between 12 and 48 sessions at $250 per session and continuing GP consultations
20. [TN] claims relief set out in the application filed on 31 May 2012.
The final orders sought in this application are as follows:
1. A declaration that the Respondents have engaged in unlawful discrimination against the Applicant, contrary to Sex Discrimination Act 1984, s.5 and s.14(2), and have sexually harassed the Applicant, contrary to s.28A and s.28B(1) and (2) of the Act.
2. Monetary compensation, including for out of pocket expenses, loss of income and general damages.
3. Costs.
Mediation
The matter was referred to mediation pursuant to an order of this Court on 29 June 2012. The matter was listed for a mediation conference on 12 March 2013 before a Registrar of the Court. Consistent with Part 27 of the Federal Circuit Court Rules 2001 (Cth), the principle purpose of the mediation is to provide a structured forum in which the Registrar mediator will enable the parties to directly and comprehensively discuss and exchange perspectives on the issues raised in the proceedings to identify and assess options that may resolve the dispute and to facilitate the negotiation of a mutually acceptable agreement that will conclude the dispute, the subject of the proceedings without the need of proceeding to a final hearing. The issue was not resolved at mediation and was listed for further directions.
Evidence
The applicant filed the following material:
a)Affidavit of TN, affirmed 9 November 2012 (the “TN Affidavit”);
i)TN gave evidence in chief and was cross-examined. Although her first language is not English, her affidavit had been sworn in English and her evidence was taken in English. However, a Vietnamese interpreter was present if any difficulties were reached in which case the interpreter could intervene.
b)Exhibit “A1” – coloured photograph;
c)“MFI – 1” – Disc of video footage;
d)“MFI – 2” – Liverpool Hospital Notes;
e)“MFI - 3” – Statement dated 8 May 2009;
f)“MFI – 4” – Clinical Records of Dr Nguyen;
g)“MFI – 5” – Notes from Liverpool Hospital dated 26 November 2010;
h)Exhibit “A2” – Weekly workers compensation payment to 16 October 2013;
i)Exhibit “A3” – Letter from Tran Solicitors, dated 18 October 2013;
j)Exhibit “A4” – Copies of computer generated payslips of TN, dated 30 April 2009 and 7 May 2009;
k)Exhibit “A5” – updated list of medical and rehabilitation expenses
l)Statement of TN, made 29 June 2009 at the offices of Trans Solicitors and Attorney taken by insurance investigator; Elizabeth Cross. A copy of this Statement is reproduced in Annexure “A” to this judgment.
The Respondents filled the following material:
a)Affidavit of EW, affirmed 12 December 2012;
i)Recently retired (January 2013), formerly salesman at BF;
b)Affidavit of GC, sworn 12 December 2012;
i)Managing Director of BF, son-in-law of AB, gave evidence in chief and was cross-examined;
c)Affidavit MB, sworn 17 December 2012;
i)Director of BF, son of AB, gave evidence in chief and was cross examined;
d)Affidavit of Luigi Capolupo, sworn 5 March 2013;
i)Solicitor for BF and AB;
e)Affidavit of VB, sworn 26 February 2013;
i)Son and litigation guardian of AB;
f)Exhibit “R1” – Sketch diagram of Office, Lunchroom and showroom;
g)Exhibit “R3” – Letter from CMC Lawyers, dated 18 October 2013;
h)Exhibit “R4” - Medical Opinion of Dr Sellathurai, dated 22 October 2013;
i)Exhibit “R5” – AB’s Statement made to Insurance Investigator, Elizabeth Cross, dated 13 October 2009- unsigned, admitted under s.63 of the Evidence Act;
j)Exhibit “R6” – Medical Report of Dr Akkerman, dated 18 October 2013;
k)Exhibit “R7” – DVD Footage;
l)Exhibit “R8” – South Western Sydney Local Health District Liverpool Hospital Clinical Records, Tabs 1-5;
m)Exhibit “R9” – Two pages of hand written clinical records of Dr Nguyen, Tabs 1 & 2;
n)Exhibit “R10” – Applicant’s Medical Reports;
i)Report from Dr Tien Manh Nguyen, 8 June 2010;
ii)Report from Dr Ben Teoh dated 25 October 2010;
iii)Reports from Dr Samir Benjamin;
1. Dated 26 June 2009;
2. Dated 25 June 2010;
3. Dated 26 August 2013;
iv)Ms Joanna Yousif, Consultant Psychologist prepared a report on TN, dated 15 September 2013, gave evidence in chief and was cross-examined.
o)Exhibit “R11” – Extract – Histrionic Personality Disorder, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (DSM-5), May 2013, p.667 [301.50];
p)Exhibit “R12” – Second Police Statement (redacted version), dated 13 May 2009; and
q)Two reports prepared by Dr Samir Benjamin, Consultant Psychiatrist;
i)Dr Benjamin gave evidence in chief and was cross examined.
Applicant’s Opening Submissions
TN proceeds under s.46PO of the Australian Human Rights Commission Act, and claims declarations and damages in regard to the conduct by the respondents amounting to unlawful discrimination on the grounds of sex: ss.5 and 14(2) of the Sex Discrimination Act; sexual harassment: ss.28A and 28B (2) and (6) of the Sex Discrimination Act. The discrimination and harassment occurred in the course of TN’s employment with BF, which commenced on Monday 27 April 2009, her first day of work. A series of incidents, beginning on Wednesday 29 April 2009, culminated in her dismissal on Monday 4 May 2009, after she protested at the conduct. The conduct was perpetrated by AB, an officer of BF for whom BF vicariously liable. The evidence is set out in the TN Affidavit. Counsel for TN acknowledges that the evidence filed for the Respondents is to a large extent a complete denial of these claims which will be the issue of these proceedings.
The effects of the offending conduct have been very severe. On 4 May 2009 TN attempted suicide by driving her car into a lake. She was rescued and spent a week in hospital and has not been able to work since that incident due to her psychiatric disability. TN relies on the following medical evidence and reports from:
a)Dr Tien Manh Nguyen – 8 June 2010;
b)Dr Ben Teoh – 25 October 2010;
c)Dr Samir Benjamin – 26 June 2009, 25 June 2010 and 26 August 2013;
d)Ms Joanna Yousif – 15 September 2013.
TN claims the following damages:
a)Past out of pocket expenses;
i)A workers compensation insurer has met treatment expenses from 4 May 2009 to date. The total was approximately $36,000 to December 2012;
b)Future out of pocket expenses:
i)Dr Benjamin recommends further psychiatric consultation over the next two years ($250 x 12 = $6,000) plus continuing medication ($2,500);
c)Loss of income – past:
i)TN’s pre-injury wages was $762 gross per week. An increase to $850 gross per week, might have been expected had that or similar employment continued;
d)$762 gross per week equates to about:
i)$637 net per week in 2008-2009;
ii)$652 net per week in 2009-2010;
iii)$666 net per week in 2010-2011;
iv)$850 gross per week for 2012-2013 and following equates to $724 net per week.
Loss of wages calculated on the above basis is claimed; and
e)Loss of income – future;
i)Treatment recommended by Dr Benjamin may or may not produce a complete recovery in two years or some longer period. An allowance for say three year for continued loss of income at $850 gross per week ($724 net per week) should be made; and
ii)General damages are also claimed.
Respondent’s Opening Submissions
TN alleges that on several occasions during the period of 29 April 2009 to 3 May 2009 AB sexually harassed her. TN also alleges that the alleged conduct of AB and BF constituted unlawful discrimination in employment, contrary to ss.5 and 14(2) of the Sex Discrimination Act. TN initially commenced proceedings by way of application. In the application it is alleged that AB sexually harassed TN over several days including 29 April, 30 April, 2 May, 3 May and 4 May 2009. The Court will be called upon to resolve issues of fact.
The Respondents deny the allegation of sexual harassment, pleaded at [7], [8], [11] and [12] of the Statement of Claim. In relation to the incident referred to at [13] of the Statement of Claim, the Respondents admit that AB:
a)Lowered the zipper on the front of his trousers;
b)Told TN to open her legs and touch herself in her genital area; and
c)Told AM to open her legs and to touch TN in her genital area.
Further, in relation to the incident on 3 May 2009, AB admits to touching his genitals. The balance of [13] of the Statement of Claim is otherwise not admitted.
In relation to the incident on 3 May 2009, the Respondents concede that the evidence of AB constitutes conduct of a sexual nature. Pursuant to s.28A of the Sex Discrimination Act it is for an applicant to prove that any sexual advances, requests for sexual favours or conduct of a sexual nature were unwelcomed. This will be an issue in relation to the incident on 3 May 2009.
It was submitted on behalf of the Respondents that there is a factual dispute in relation to what occurred on 4 May 2009. The Respondents submit that TN became abusive and started shouting at AB after GC had verbally warned her about her conduct in leaving a customer of BF to be served by a fellow employee, so that she could speak to and subsequently have lunch with a friend who had attended the Workplace. The respondents say that TN’s conduct justified her summary dismissal from her employment. TN refused to leave the Workplace, necessitating the calling of the police to escort her from the Workplace. The Respondents deny that they have engaged in unlawful discrimination against TN, contrary to ss.5 and 14A of the Sex Discrimination Act. The reliability of BF will be determined by the application of s.106 of the Sex Discrimination Act.
The Respondents’ submissions in respect of damages are that TN alleges that the conduct of AB caused her to sustain a psychiatric disorder, which has given rise to treatment expenses and has affected her capacity for employment. The issue before the Court is whether or not TN has sustained a psychiatric disorder as a consequence of the conduct complained of and, in the event it is found, that she has the nature and severity of the psychiatric disorder.
Consideration - Liability
I noted in my earlier judgment in this matter that it was my understanding that AB had no further involvement in the management and administration of the company that bears his family’s name, and that in more recent years he has held a token role in the organisation because he was the founder of the company and established a successful enterprise that has become widely recognised and known in the retail environment. It is only in these circumstances of a successful family enterprise that the aged founder would be permitted to remain in the organisation when the next generation has assumed control. It should also be noted that AB’s secretary appears to be engaged as, in effect, a carer for him, providing him with lunch, and eating with him in the tea-room next to his office. Her duties include taking AB to and from work and to other appointments, assisting him in cutting his nails, trimming his eyebrows and other tasks. These tasks are not in the normal scope of a traditionally engaged secretary.
AB’s secretary (otherwise known as “AA”) has not prepared a statement or affidavit in these proceedings and has not been called as a witness. Other than the casual references to this person’s role and function, little is known about her knowledge and responses to the alleged behaviour of her employer. In the evidence before the Court, the only references made to this person are in relation to her carrying out the functions described above and minor procedural aspects of the function of a personal assistant.
In this case, BF, which carries AB’s family name and on external appearances, the organisation seems to be successfully operated by the next generation of the family. Without evidence, it is not possible to determine what role AB continues to hold in the organisation and whether the family members were placed in the inevitable position of forcing him to stand down from the organisation he established and built through a substantial part of his business life. In the absence of evidence, the functions and responsibilities of AB in respect of staff relationships within the organisation is unknown. AB carries no title other than founder of the organisation, but there have been no references made in respect of a board position or any other managerial function. However in his Statement made to the Insurance Investigator, he describes his position as “co-director”. His role in recruitment and retention of staff is unclear and there has been no evidence or explanation advanced on this matter. Despite this, it would appear that AB did recruit sales staff and did issue instructions in respect of their training, responsibilities and supervision. The scope and the responsibility of this function are unknown.
TN alleges that she was sexually harassed by AB on four occasions including on 29 April, 30 April, 2 May and 3 May 2009. The Respondents deny the allegations of sexual harassment pleaded in [7], [8], [9], [11] and [12] of the Statement of Claim. However, in respect of the incident on 3 May 2009 recorded by TN on her mobile phone, the Respondents concede that the actions of AB constituted conduct of a sexual nature. The significant argument advanced on behalf of the Respondents is that the conduct was not unwelcomed pursuant to s.28A of the Sex Discrimination Act. It is for TN to prove that the conduct was unwelcomed and the burden of proof to be discharged by TN is on the balance of probabilities: Evidence Act, s.140.
It is submitted on behalf of the Respondents that the Court has to be satisfied that TN has proved her case on the balance of probabilities and the Court is to take into account the nature of the cause of action of the offence, the nature of the subject matter of the proceedings and the gravity of matters alleged which is required by s.140(2) of the Evidence Act 1995 (Cth) which encapsulates the Briginshaw v Briginshaw (1938) 60 CLR 336 standard of proof.
The four alleged events of harassment involved or were witnessed by AB, TN and AM. AB was not called as a witness in these proceedings. In my earlier decision there was sufficient medical and psychiatric evidence to establish that AB was incapable of giving instructions. A submission was made on behalf of TN that a Jones v Dunkel (1959) 101 CLR 298 inference is open for the failure to call AB as a witness, but the Respondents claim that this submission is without foundation on the basis of a ruling under s.63 of the Evidence Act 1995 (Cth), allowing AB’s Statement into evidence. The Respondents argue that AB was not available in the sense that he was not competent to give evidence under s.113 of the Evidence Act 1995 (Cth). If someone is not competent to give evidence there can be no failure to call such a person and the Jones v Dunkel inference cannot be drawn. Despite these submissions in respect of AB’s competency I have formed the view, from unchallenged evidence given during the hearing, that the extent of the claimed lack of competence displayed by AB and supported by various medical/psychiatric reports may have been overstated.
At the time of the hearing, the evidence that was given by his son VB, his legal guardian in these proceedings, that AB still spends three to four days per week at the store where the disputed incidences occurred, although it is alleged that he is not working and makes no decisions as to the operation of the business. VB relevantly stated during cross-examination:
Canceri: [VB] where is your father today, do you know?
VB: Today he may be at Strathfield or he may be in the office.
Canceri: At the office?
VB: Maybe.
Canceri: I see. Is that the office at the [Sydney Suburb] store ‑ ‑ ‑?
VB: Yes.
Canceri:‑ ‑ ‑ that has been mentioned in ‑ ‑ ‑?
VB: That’s right.
Canceri:‑ ‑ ‑ this evidence. Does your father attend the office every day?
VB: No. Maybe three, four – three, four days a week.
Canceri: Does he work in management in – of the company?
VB: He’s there, but he’s not working. He’s there as a figure. He makes no decisions, nothing; he’s there.
Canceri: But he has conversations with the staff and so on?
VB: I’m sure he does, yes.
(T/ 126.20-40)
The sworn affidavit evidence of EW, sworn on 12 December 2012, was that as late as December 2012, AB had continued to work at the store as he had been in 2009. In oral testimony EW indicated that he retired in January 2013. The relevant passages from EW’s affidavit state:
5. Since that time I have remained in full employment with [BF] as a salesman.
6. In my capacity as a salesman, I have little contact with [AB] except to exchange greetings.
7. [AB] is an elderly gentleman and stays mainly in his office which is located behind the reception counter which is at the back of the store. I have been in his office only a few times. You could only see a small part of the store from [AB]’s office. He does not have a good view of the store.
8. Near [AB]’s office there is a tea room. That is where [AB], his secretary [AA] and his receptionist [AM] eat their lunch. The people who work on the floor have their own canteen on the ground floor.
At the hearing on 26 March 2013 for the application in a case for non-publication or suppression orders and the appointment of a litigation guardian, the medical report of Dr K Sellathurai, dated 31 January 2012, was tendered in support of the application and contained the following comment:
Further to my report on the above patient on the 2nd November 2011, I wish to inform you that Mr [AB] was admitted on an emergency basis to Concord Hospital after collapsing at home on 20th January 2012. As his condition deteriorated he was transferred to the Intensive Care Unit and diagnosed with septicaemia, heart and kidney failure. He has been on life support system. Initially the specialist looking after him at the hospital had informed the family that his prognosis for survival was extremely poor. At present he is recovering at a very slow pace being very weak and confused and unable to stand except etc.
In accordance with Dr U. Subhas’ recommendation contained in his report dated 9 January 2012, Mr [AB] was screened by me for neuro-degenerative disorder prior to his admission to Concord Hospital and was found that his Mini Mental Score was very poor. He scored only 6/30.
He has suffered from urinary incontinence and now has a indwelling catheter. His gait was poor, being unable to walk only very short distances with the help of an assistant. Both deep tendon reflexes were depressed.
Thus from the history of clinical examinations I can conclude that Mr [AB] has cognitive impairment which may be on the basis Alzheimer’s type dementia.
If this elderly, frail gentleman were to come out of hospital he will need long term rehabilitation therapy and may need to live the rest of his life probably in a nursing home set up.
A further report from the same practitioner, dated 2 April 2012, contains the following:
Further to my report on 2nd November 2011 and 31st January 2012 I wish to inform you that the above patient was discharged from Concord Hospital after spending approximately two (2) months in hospital including two (2) weeks in the Intensive Care unit. He was transferred to the Alwyn Rehabilitation Centre at Strathfield with the following problems.
Principle Diagnosis:
Pneumonia complicated by sepsis respiratory failure.
Other medical problems
1. Delirium superimposed on underlying Cognitive Impairment on the basis of Alzheimer’s type dementia.
2. Non ST- elevation myocardial infarction with worsening hypo* and heart failure.
3. Acute or chronic anaemia requiring blood transfusions.
4. Urinary retention requiring a permanent indwelling catheter
5. Gradual decline in mobility and general function
Mr [AB]’s general health is very poor since being discharged from Alwyn Rehabilitation and he is unable to walk without the aid of an assistant.
Mr [AB] has a permanent indwelling urinary catheter.
As I mentioned in my previous report, he will need long term care and in my opinion it won’t be long before he gets admitted to a nursing home type institution.
I am aware that there is a Court hearing on 4 April 2012. Mr [AB] is too ill to attend Court on that day.
In a further report from the same practitioner dated 21 February 2013, Dr Sellathurai states:
Mr [AB] suffers from a multitude of medical illnesses as set out in my medical report stated 2 November 2011, 31 January 2012, 2 April 2012 and 1 June 2012.
I am aware that Mr [AB] is a respondent in proceedings brought against him and another for alleged sexual harassment and sex discrimination in the workplace. I have been informed that the proceedings have been brought a former employee of [BF] Pty Ltd.
I am of the opinion that Mr [AB] is not capable of making decisions required for conducting the proceedings before this Court because, in my opinion, his mental state will not allow him to follow the proceedings and give instructions. Further, given his current mental and physical conditions, I am of the opinion that exposing him to rigors of giving evidence may seriously exacerbate his mental and physical condition.
Counsel for TN submits that the inability to give instructions to conduct litigation does not mean there is an inability to give evidence on what are basically simple issues. In the light of the medical reports set out above, it is difficult to reconcile that material with the unchallenged evidence of VB and EW.
I am satisfied that with the appointment of a litigation guardian for AB, as the significance of these proceedings and the procedural steps taken in order to conduct the proceedings may well be beyond his capacity. However, the question remains as to whether he is capable of answering straight-forward questions that concern the four days in which TN alleges she was harassed and, in particular, the events of 3 May 2009. If the witness is incapable of understanding any question (incapacity cannot be overcome in some way), he will not be permitted to testify at all. If a witness is incapable of understanding a question about a fact (and that incapacity cannot be overcome in some way) he will not be permitted to testify regarding that fact, but may be permitted to testify as to other facts. The concept of “the capacity to understand a question” imposes an ability to comprehend questions put to the witness. It requires only basic comprehension skills. A witness may be better able to understand a simple question as opposed to one involving complex concepts. This is to be distinguished from a witness that is incapable of giving an answer that can be understood to any question, where in that circumstance they will not be permitted to testify at all. If a witness is incapable of giving an answer that can be understood to a question about a fact, he will not be permitted to testify regarding that fact but may be permitted to testify as to others (s.13(2) of the Evidence Act 1995 (Cth)).
Without this conflicting evidence before the Court this issue would not have arisen and the medical reports relied upon in my previous decision would have been the basis for not calling AB. However, that has been thrown into doubt as it would appear that he has returned to his office at the Workplace which appears to be contrary to the medical reports suggested in the immediate foreseeable future that would have been beyond AB’s capabilities. In these circumstances, some weight, being only small, must be given to the submission that a Jones v Dunkel inferences arises.
The only other eye witness to the majority of the alleged occasions of sexual harassment was AM, however, she has not provided a written statement or affidavit and has not been called as a witness by either party. The sworn testimony of VB is as follows:
Rollinson: And you’re the litigation guardian for your father in these proceedings?
VB: Correct.
Rollinson: You have been sitting in court listening to the evidence?
VB: Yes.
Rollinson: You have heard evidence about a person by the name of [AM]?
VB: Yes, I have.
Rollinson: She was previously employed by [BF]?
VB: That’s right.
Rollinson: She’s no longer employed by the company?
VB: That’s right.
Rollinson: Do you know when it was that she left or when her employment came to an end with [BF]?
VB: Middle of last year, I think. I think middle of last year.
Rollinson: And she was employed as a sales person, was she?
VB: [AM]?
Rollinson: Yes?
VB: No, receptionist.
Rollinson: Receptionist at the [Sydney Suburb- Workplace] store?
VB: Correct.
Rollinson: And do you know what she’s doing now?
VB: No. She – I believe that she may be in accounting – some accounting firm. I heard a rumour that she was looking to get into that; that’s all.
(T/125.39-126.12)
Counsel for TN invites the Court to draw a Jones v Dunkel inference asserting the failure of the Respondents to adduce evidence form AM. It is submitted that no reason is offered by the representatives of the Respondents as to why the evidence was not adduced from AM, as it would have been expected that the representatives of TN would have sought to adduce evidence from AM. Consequently, a Jones v Dunkel inference should therefore be drawn against TN for failing to call AM.
On the material placed before the Court, it suggests that on each of the four occasions that TN was sexually harassed by AB, AM was present. No explanation has been advanced to explain AM’s presence on any of these occasions. The contents of TN’s Statement were provided by the Insurance Investigator, Elizabeth Cross (Annexure “A”). They indicate that AM was present during TN’s interview and was asked by AB whether TN should be employed. Although TN and AM appeared to have distinctly different roles within the organisation, with TN employed as a sales person and AM employed as a receptionist, they both appeared to be present when TN was required to visit AB’s office.
Another person relevant to these proceedings that has not prepared a statement or affidavit and was not called to give evidence is TN’s husband. There is a conflict between the evidence given by TN and the evidence in Dr Benjamin’s report of 26 August 2013 in respect of when TN drove her car into Chipping Norton Lake. The issue concerns TN’s husband as to whether he was present when the vehicle entered the lake. TN stated that her husband was present when she drove her vehicle into the lake, but according to Dr Benjamin’s clinical notes TN contacted her husband prior to attempting suicide by driving into the lake and he in turn rang the police. In the version given by TN her husband had sat in the car with her at the lake but indicated that he was tired and wished to return home. TN insisted that she stay at the lake so her husband left the car and commenced walking to their house, which was a considerable distance. There were no other specific details forthcoming.
TN’s husband could have clarified the situation by giving evidence in the proceedings, however for a reason that is not disclosed, he did not. A Jones v Dunkel inference can be drawn by the failure to call evidence from TN’s husband in respect of this issue.
TN’s husband could also have given evidence on several other relevant and important issues, including complaints made by TN to him that she had been sexually harassed, how she allegedly felt after the incident on 3 May 2009, the confrontation between AB and MB after TN was summarily dismissed and, importantly, the mental state of TN since May 2009 up until the date of this hearing. No reason has been given for not calling TN’s husband to give evidence in respect to these factual issues and accordingly a Jones v Dunkel inference can be drawn in relation to the failure of TN’s husband to give evidence in these proceedings.
Another person relevant to these proceedings, who has not prepared a statement or an affidavit and was not called to give evidence, is AB’s secretary or personal assistant, AA. This individual was present during the original interview of TN when she was seeking the position. Although only passing reference was made, it appears that AA was also present at different times when TN and AM were both in AB’s office. As AA was apparently a relatively long term employee and closely associated with the activities of AB, it leaves unanswered as to what knowledge she had concerning AB’s characteristics and manner. Similarly, no reason has been given for the failure to call AA to give evidence in respect of these important factual matters and accordingly a Jones v Dunkel inference can be drawn in relation to the failure of AA to give evidence in these proceedings.
The closing submissions on behalf of TN submit that her case was entirely made out, in accordance with the TN Affidavit and the colour photograph, Exhibit “A1”. In addition the video footage, Exhibit “R7” is claimed to show that the conduct alleged was persistent, outrageous and unwelcomed sexual harassment by AB. TN recorded the incident on her mobile phone for her own protection as she claimed that she feared that she might be in danger if she left the room. TN claims that she was not laughing and was not amused by AB’s actions. The substantial claim was that she was dismissed when she protested against AB’s conduct.
Two key pieces of evidence before the Court are the video (Exhibit “R7”) and AB’s Affidavit (Exhibit “R5”). The circumstances in which the video came into existence are detailed elsewhere in this judgment. The video is recorded on a mobile phone in the possession of TN and is 4 minutes 31 seconds in duration. The vision shows AB masturbating whilst seated at his desk in his office at the Workplace. The audio content is discussed in more detail below.
The unsigned copy of AB’s Statement/Affidavit, (Exhibit “R5”) was taken by an Insurance Investigator, Elizabeth Cross on 13 October 2009 at the office of the Workplace. Mr Canceri, for the Respondents, made an application under s.63(2) of the Evidence Act 1995 (Cth) which deals with the Statement which is claimed to be hearsay evidence as Counsel did not propose to call AB, the primary reason being the evidence of his psychiatrist and treating general practitioner establishes that AB is an unavailable person within the definition of s.4(1) of the Evidence Act 1995 (Cth) on the basis that he is not competent. It is submitted that he is compellable but not competent to give evidence. Subsection 13(3), (4) and (5) of the Evidence Act 1995 (Cth) provides:
(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
(5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:
(a) that it is important to tell the truth; and
(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and
(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
The application to admit AB’s statement under s.63 of the Evidence Act 1995 (Cth) was granted.
The content of the statement which was the subject of objection is as follows, noting aspects therein were not pressed:
1. This statement made by me accurately sets out the evidence, which I would be prepared, if necessary to give in Court as a witness. The statement id true to the best of my knowledge and belief and I make it knowingly that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything I know to be false or do not believe to be true.
2. I have been the owner and Director of [BF] for 49 years. [BF] operates five [stores] in NSW. I am currently based in the [Workplace] store seven says per week from 9am to 5:30pm. There are currently seven or eight full time staff members employed at the [Sydney suburb] store including office and sales staff.
3. [TN] presented for a job interview as a Sales Assistant on 23 April 2009. I conducted the interview with [TN] together with [AA], my Personal Assistant. I vaguely recall that [TN] may have mentioned that she had experience in the real estate industry, however, [AA] would recall more details about the interview. I deny [TN]’s allegations that I commented about her legs and told her she was beautiful during her first interview.
4. I asked [TN] to return for a second interview on Sunday 26 April 2009. During the interview I noticed that she was wearing a very short skirt and commented that she was required to wear a longer skirt for work or a pair of trousers. She was sitting down on the chair in front of my desk and when I made this comment, she stood up, pulled up her skirt to show her legs and underwear and said words to the effect of, “What about this”? and went to sit in a chair further away, seemingly to give me a better view of her legs. I ask her if she could masturbate for me and she did. I masturbated as well while sitting at my desk, [Not pressed].
5. [TN] told me that she did not have any money to purchase new work attire and I gave her $1000 cash and told her that the money was in order to purchase clothes for work. [Not pressed]. I asked her to start work tomorrow at 9am. We did not discuss her wage at that time.
6. [TN] commenced work at 9am on Monday 27 April 2009. At lunch I offered that she join me for lunch in my office together with [AA], my granddaughter who is also employed at the [Workplace], and [AM], Receptionist. [TN] also joined us for lunch every day that week. [AA] and [AM] were also present for lunch every day, though my granddaughter was not always present. It is correct that I did not invite other sales staff to my office for lunch. I only invited [TN] as she was new and I was trying to establish a friendship. She did not appear to be uncomfortable and seemed to enjoy the lunches.
7. [TN] was trained on the job by the senior sales staff, predominantly, my son in law, [GC] and [SS]. She was not provided with a written job description.
8. During that first week, I believe it was Tuesday 28 April, I went to dinner at Milano restaurant with [AM], [TN], [AA] and her husband, and other friends and family members of staff. I believe that [AA] had invited [TN] for dinner. Nothing unusual occurred that evening.
9. Nothing untoward happened during the rest of the week. I deny that on about Wednesday, 29 April I invited her to my office to watch Playboy TN and asked her to touch herself. I do not have access to this channel on my television. I might have joked with [TN] at some point during the week saying that I wanted to take her to dinner at Milano and to rent a room upstairs, though this never occurred.
10. I do not know anything about [TN] taking Friday 1 May 2009 off in order to get married. Our records indicate that she did take a day off work that day.
11. At some point during the week, [TN] told me that she had just come from Vietnam and had brought 50 pieces of art back to Australia with her. I told her that if they were nice I would buy them from her. She said that she paid $50 per piece and was willing to sell them to me for the same price.
12. I did arrange for my delivery staff to attend [TN]’s her house on Friday 1 May, to collect the pieces of art. My Driver collected 24 pieces which I later paid $2000 for by cheque on 4 May 2009.
13. I deny that on Saturday, 2 May I invited [TN] and [AM] into my office and asked them to touch each other and asked [TN] to take her stockings off. I dent that I touched her leg and I deny that I touched myself that day.
14. On the afternoon of Sunday 3 May 2009, [AM] and [TN] were in my office. I do not recall whether I called them into my office, or whether they came of their own accord. They sat on the lounge across my office desk, though I did not ask them to do so. I did ask [TN] to touch herself and asked [TN] and [AM] to touch and kiss each other. I had the impression that they would do so as they always giggled and asked me if I liked both of them whenever we were all together. I touched myself while I was asking them to do these things, however, they did not touch or kiss each other. I do not recall the exact details of that day, however, I believe that [TN] was wearing a skirt and had been touching herself.
15. After the event, [AM] and [TN] returned to work. They seemed to be enjoying themselves and were giggling and did not indicate that they felt uncomfortable. The door to my office is located right next to the lounge on which they were sitting and at any time could have got up and left.
16. I deny that I told [TN] or asked [GC] to tell her not to speck to male customers. [Not pressed]
17. [Not pressed]. [TN] took exception to this and came into my office screaming at me saying that she did not like the way in which [GC] was running the floor. My son, [MB], was also in the office and told her to shown me some respect and not speak to me that way.
18. [TN] asked my son who he was, though she had been introduced to him on a few occasions during the week. My son said words to the effect, “You know exactly who I am”. [TN] was continuing to raise her voice and my son said she could leave if she did not like the circumstances at work. As she continued screaming, my son said that he would call the police. I did not say anything during this time. [TN] had not mentioned any video footage at that time.
19. As [TN] was still screaming, my son called the police and four Officers attended the store. The Officers were trying to calm [TN] down, however, she continued to scream. [TN] then mentioned that she would not leave until she received her cheque for the artwork. I asked [AA] to provide a cheque for $2000 which she did. [TN] had still not mentioned any footage at that time. I believe that [TN] initially requested cash money, though eventually accepted the cheque.
20. [Not pressed]
21. Several hours later, [TN] returned with a man who she identified as her husband. Her husband presented either a disc or memory stick saying that it contained footage and words to the effect of that I would “see myself on the news… look what you did to my wife”. They walked out of the store. At that time I did not know what the footage was.
22. [Not pressed].
23. [Not pressed].
24. [TN] had informed me that she had been married to an Australian man though had divorced prior to commencing employment here. I do not know anything else about her personal life. I did not think she was married until she brought the man to the store on 4 May whom she identified as her husband.
25. [TN] was paid $900 gross from 27 April to 4 May 2009.
In this matter the Court is being called upon to resolve issues of fact. The submissions made on behalf of the Respondents is that the Court should carefully scrutinise the evidence of TN as there are several matters affecting her credibility in terms of her truthfulness and reliability as a witness. It is submitted that TN’s credit is such that the Court is invited not to accept her evidence on critical factual issues unless they are independently corroborated.
In the Respondents’ closing submissions it is contended that several matters arising during TN’s cross-examination demonstrate her lack of credit. As TN is the sole witness to a number of the allegations made in this matter, taken together with the very limited opportunity for independent corroboration, the credibility of TN is highly significant in resolving what the Court is being asked to do in these proceedings. Consequently, each aspect of the evidence given by TN needs to be closely scrutinised in the evaluation her credibility.
The first of these issues relate to TN’s demeanour in giving evidence. On several occasions during cross-examination, she became combative and evasive. When faced with clear evidence contradicting matters raised by her in the TN Affidavit or in her oral evidence, TN stood by her evidence. The Respondents contend that this demeanour demonstrates that she was willing to say anything which she perceived would advance her case despite irrespective of it was true or not. In support of this contention, the Court was referred to the issue in cross-examination as to whether or not she can be heard giggling or laughing in the video-footage of the incident on 3 May 2009. That recording, Exhibit “R7”, was played during the hearing and I have taken the opportunity to replay the material in the comparative quietness of my chambers. The relevant segment is 4:31 minutes in length and brief laughter or giggling of two people can be heard at approximately 00:52-58 minutes at the beginning of the footage and again briefly at the end of the footage. It is not in dispute that AM and TN were present AB’s office at the time of the incident on 3 May 2009.
Immediately after the footage was shown in Court, the following sequence of questions occurred:
Canceri: Do you agree that about 52 seconds into the video footage you can hear two people laughing?
TN: No.
Canceri: Only one?
TN: Only [AM], and that question I already told the police before.
Canceri: You told the police that on the video footage only one person was laughing?
TN: Remember last time when you – when you ‑ ‑ ‑
Canceri: What?
TN: ‑ ‑ ‑ on the court ‑ ‑ ‑
Canceri: Can you – can you answer the question? You told the police that only one ‑ ‑ ‑
TN: No because last time you raised the question with the police in the other court and I already told the police about that. The police came back to you and tell you in the court in Parramatta.
Canceri: So the police wanted to know if you were laughing?
TN: No, you asked – you also raised the same question about this, and I already tell the police; the police tell you.
Canceri: If you could answer my question: did the police want to know from you ‑ ‑ ‑
TN: No, the police don't want to know from me, because the police know that wasn't me.
Canceri: Did the police want to know from you if you were heard laughing on the video footage?
TN: No, that wasn't my laughing.
Canceri: In what circumstances did the police question you about ‑ ‑ ‑
TN: The police didn't question me.
Canceri: But you said a few moments ago that ‑ ‑ ‑
TN: Yes, remember ‑ ‑ ‑
Canceri: ‑ ‑ ‑ they wanted to know ‑ ‑ ‑
TN: ‑ ‑ ‑ last time we went to court in Parramatta ‑ ‑ ‑
Rollinson: I object, your Honour. I object, your Honour. My learned friend is talking over the witness. Your Honour, I would ask that she be allowed to answer before further questions are put.
Canceri: The questions are pretty clear, your Honour. I will start again. Did the police speak to you about whether or not you were heard laughing on the video footage; yes or no?
TN: No.
Canceri: I understood you to say a few moments ago that the police wanted to know from you if you were head on the video footage laughing.
TN: Yes.
Canceri: Did you then speak to the police about whether or not you could be heard on the video footage laughing?
TN: Yes, I did.
Canceri: And what did you tell them?
TN: I tell them, “That's [AM] laughing. That's clearly [AM]'s voice, not my voice.”
Canceri: So they wanted to know if you were laughing?
TN: Because you asked them.
Canceri: When did I ask the police, ma'am?
TN: The other court in Parramatta Court.
Canceri: You didn't give evidence in the Local Court.
TN: I didn't give evidence, but when you asked the police, the police go to the room and asked me; that's why I remember.
Canceri: And later on during the video footage you could hear someone else laughing; who was that?
TN: [AM].
Canceri: So [AM] was doing all the laughing?
TN: Yes.
Canceri: That's not correct, is it?
TN: It's correct.
Canceri: At 52 seconds into that video footage you can hear two people laughing.
TN: [AM] not laughing; [AM] just whisper in my ear in Vietnamese, “What are you doing? I said, “I'm recording him." That's it; not laughing.
Canceri: And what was [AM] doing the whole time she was sitting on the couch; was she just sitting there?
TN: No. At first she saw me record and then she ask me what I'm doing. I said, “I'm recording." And then she took out her phone and then record on her phone. She recorded same time with me; that's why we now have four video.
Canceri: Was she pretending to kiss you?
TN: No.
Canceri: She was just sitting there recording?
TN: Yes. If she kiss me, who record the video?
Canceri: Sorry?
TN: If she kiss me, who record the video? The one you see that's on her phone; she record it.
Canceri: And who said, “Come on” to [AB]?
TN: Yes, yes, that's her voice.
Canceri: That's her voice?
TN: Yes.
Canceri: She said that?
TN: Yes. Because before that I said, “I’m not a hooker,” and then she said, “Come on,” that's her voice, not my voice.
Canceri: She said that to you, did she?
TN: No, no, no, before that – if you play the video again, [AB] tell me, “I'm paying you. You – why you not – like you do nothing. I'm paying you." And then I ask her – I ask him, “You pay me what?" And then I said, “I’m not a hooker." And then [AM] laugh, “Come on." And she laugh because of the conversation between us is so awkward, like between me and [AB] is – to her that's funny.
Canceri: Well, what you've just mentioned, why can't you hear that on the video footage?
TN: You hear – turn it up, turn the volume up. I hear it; I hear it. Tune – yes, yes, turn it, turn it.
Canceri: Do you want to listen to it – okay.
TN: I think in the circumstances, your Honour, the whole video had better be played again.
His Honour: Yes.
VIDEO SHOWN
Canceri: Can it just be stopped there for the moment, your Honour? Can you hear [AB] say, “Show how good you could kiss,” those words?
TN: He ask [AM] to kiss me.
Canceri: You could hear that?
TN: Yes, I could hear that, yes.
VIDEO SHOWN
Canceri: Can it just be stopped there, your Honour. I suggest to you you can clearly hear two people giggling or laughing; do you agree or disagree?
TN: I told you that's [AM], because I'm not kissing her or anything.
Canceri: I'm not ‑ ‑ ‑
TN: Because if ‑ ‑ ‑
Canceri: I'm not suggesting that. Please, what I'm suggesting to you is that you can clearly hear two people giggling or laughing.
TN: No, I hear only [AM]. Because I know for myself I'm not laughing. I don't need to hear, because I know it, I'm not doing it.
VIDEO SHOWN
TN: It's there. That's there; that's the part I mention before, yes.
Canceri: [AB] said at that moment, I suggest, “I pay you and you don't do anything,” or words to that effect.
TN: And then play – play again. I ask, “Pay what?" because he didn't pay me anything. Play, play, and then you see.
VIDEO SHOWN
(T/34.45-39.20)
It is not in dispute that AM and TN were present in AB’s office at the time of the incident on 3 May 2009. The substantial submission on behalf of the Respondents was that TN was acutely aware of the evidence of two people being heard giggling or laughing in the footage, as this matter had previously been raised with her by the police in the criminal prosecution of AB. TN was cross-examined about the police wanting to know whether she could be heard laughing on the footage (see above). TN repeatedly evaded answering the question about whether the police wanted to know if she could be heard laughing on the video footage. When pressed, she conceded that she had spoken to the police about whether or not she could be heard on the video footage laughing.
On behalf of the Respondents it is submitted that TN has told a lie in relation to the factual issues concerning the laughing, because she was well aware that to concede that she was laughing would severely undermine her case that the conduct on that occasion was unwelcomed. She was well aware that laughing at AB, in combination with video recording him and remaining in his room, when she quite clearly could have left the room, demonstrates that the conduct of AB was not unwelcomed and, in fact, was encouraged.
The second issue in respect of TN’s credibility is why she did not leave AB’s office when he engaged in conduct of a sexual nature. Exhibit “R1” is a sketch diagram of the layout of AB’s office. In particular it shows the position of the couch where AM and TN were sitting during the incident 3 May 2009. It is clear that the couch is positioned near the exit/entry to AB’s office. A person sitting on the couch does not have to pass AB on their way out of the office if AB is sitting behind his desk, as he was doing at the relevant time. The submission made on behalf of the Respondents is that a review of the cross-examination of TN, a question arises as to why she simply did not get up from the couch and leave AB’s office when he engaged in conduct of a sexual nature. It is argued that TN was well aware that she would be questioned on this issue and it would be put to her that she could have simply got up from the couch and left AB’s office if she were truly distressed by his conduct. This is addressed in the following sequence of questions:
Canceri: You said you felt like you couldn't get out of the room?
TN: Yes.
Canceri: That's what you said a few moments ago?
TN: Not I felt – but he don't let us get out of the room. He don't let us – me or [AM], both of us, he won't let us get out of the room.
Canceri: The couch was positioned right near the entrance to his room?
TN: Yes, but he is the boss and that his private showroom, and everyone there work for him, and that's – his family member is there. How can I get out? Do you think I can walk out and I can walk out the door myself? I don't think so.
Canceri: You couldn't simply get up and walk out of the room?
TN: What do you think, if I walk up, can't he just call [GC] or someone in there, stop me? Yes, he could, because he's the boss, and I don't want to lose the job just because of that. If he stopped doing what he did to me then that would be a perfect job.
(T/ 32.25-46)
This issue is also addressed in the TN Affidavit as follows:
21. I returned to work as usual on Sunday 3 May. AB asked AM and I to attend his office and to sit on the lounge which was opposite his desk. While unzipping his pants, AB said, “TN touch yourself, touch your pussy”, then to [AM] “touch her, open your legs.” He told me to masturbate and make him come. He was masturbating. I decided to film him doing this with my mobile telephone and [AM] did so to. I was disgusted though did not want to leave as I did not want to lose my job. I was waiting for him to ejaculate so that I could leave the room.
The argument advanced on behalf of the Respondents is that if this were in fact the truth, TN would have simply given evidence in cross-examination about her staying in the room because she did not want to lose her job. Instead, she initially gave evidence that AB could have called GC (the Managing Director of BF) or someone else to stop her from leaving the room. This evidence does not appear in her affidavit and is another example of TN responding to questions in cross-examination in a way which she perceives will advance her case, without regard to the truthfulness of the evidence. It is suggested in TN’s evidence that she did not leave the room because AB could have called GC or someone else to stop her from leaving is without foundation, rather, TN gave such evidence to counter the suggestion that the conduct was not unwelcomed.
Further, TN said nothing in the TN Affidavit about AB telling her that she could not leave the room, yet in cross-examination she said that AB told her not to leave:
Canceri: Did [AB] say that you were not to leave the room?
TN: Yes.
(T/33.37-39)
The submission made on behalf of the Respondents is that it would be expected that important evidence in cross-examination would feature in the TN Affidavit. This evidence was given to explain why she did not leave the room when she had the opportunity to do so and to counter the suggestion that the conduct was not unwelcomed.
In addition to the material above, TN went further and suggested that AB could have taken hold of her as raised in the following sequence of questions:
Canceri: Who was going to stop you? Who was going to stop you?
TN: He – he going to stop you.
Canceri: How?
TN: He going to take hold of me, “You not going anywhere," before he already ordered me a lot of time before. Every time we tried to walk out from his office, we had to have a reason. I already used the reason, “I need to go to the toilet," but that reason didn't apply because I already go to the toilet before – before he do that, so I can't go to the toilet the second time.
(T/42.7-13)
It is submitted that TN’s evidence in this regard originated from the cross-examination about her feeling in danger when in AB’s room on 3 May 2009. The following sequence of cross-examination occurred in respect of this issue:
Canceri: Okay. You didn't feel in danger at that point, did you?
TN: I do.
Canceri: You felt in danger from who, Mr [AB]?
TN: Yes.
Canceri: You knew that at that stage he wasn't perfectly well, was he?
TN: He well. He can walk around without a stick.
Canceri: But he had a walking-stick, did he?
TN: Yes, but remember I mention on Saturday he move from his chair to touch my leg without a stick, and [AM] ask him, “Where is your stick, Mr [AB]?"
Canceri: [AM] mentioned, “Where ‑ ‑ ‑"
TN: “Where is your stick, Mr [AB]?" Because he walk without a stick to touch my leg on Saturday.
Canceri: So you're saying that Mr [AB] really didn't need a walking-stick; he was ‑ ‑ ‑
TN: Maybe in long distance, I don't know.
Canceri: ‑ ‑ ‑ making up ‑ ‑ ‑
TN: But as I saw in my eyes, he can walk, and touched me without using the stick.
Canceri: So you're suggesting to the court that he had nothing wrong with his legs; he didn't need a walking-stick?
TN: I don't say he had nothing wrong with the leg ‑ ‑
Rollinson: I object, your Honour. I object, your Honour; there's a mis-characterisation of the answer given.
Canceri: It's a legitimate question, your Honour. I'm trying to work out what the witness is saying in relation to the walking-stick, and what [AM] mentioned about it.
TN: That's what [AM] mentioned, “Where is your stick, Mr [AB]?" That's what [AM] talk, not my talk, but that's what I see, he walk and touch me without a stick – using the stick.
Canceri: So are you trying to suggest to the court that he didn't need ‑ ‑
TN: I'm not trying to suggest to ‑ ‑ ‑
Canceri: ‑ ‑ ‑ he didn't need a walking-stick?
TN: ‑ ‑ ‑ the court anything. I'm just telling the truth what I see in my eyes. I'm not suggesting anything.
Canceri: You could have left at any moment ‑ ‑ ‑
TN: No, I couldn't. I told you ‑ ‑
Canceri: ‑ ‑ ‑ on this particular day.
TN: Okay, if I left, I come back to work on Monday; that's my duty. I come to the showroom for work, and if I left, I left my duty; that's not wrong – that's wrong.
Canceri: Well, after being in Mr [AB]'s office on 3 May 2009, you eventually left his office; correct?
TN: Because he – at that time he don't need me and [AM] any more.
Canceri: Because you had finished recording.
TN: Because he come out – didn't you see it on his face, he come out. He didn't want us to sit there and look any more, that's why we walked ourselves before that – just imagine he doing like this and we walk out; what's he going to do with me?
Canceri: So you sat there and you made sure that you recorded everything?
TN: Not I make sure, because I think, and I already say with the police statement, I think if I let him finish the business he doing, he will let us leave; that's what I feel.
(T/40.5-41)
In the Respondents’ closing submissions it is submitted that TN states nothing in the TN Affidavit about feeling in danger and believing that AB would have physically stopped her from leaving the room if she attempted to do so. As these are important matters, it would be expected that a reference to them would be contained in TN’s Affidavit. It is submitted that TN did not feel in danger and there was absolutely no risk of AB physically restraining TN from leaving his office if she had attempted to do so.
The third issue in respect of TN’s credibility concerns the events leading up to her confrontation with AB and MB on 4 May 2009, which resulted in her summary dismissal. In the TN Affidavit, it is stated that TN’s confrontation with AB occurred when GC approached her and said “Mr [AB] prefers that I don’t serve customers with [EW]”. It was after this that TN confronted AB and MB then became involved. The GC Affidavit puts squarely in issue the reason for TN’s summary dismissal on 4 May 2009 as follows:
8. One day in late April or early May 2009 at about 12.30pm I noticed a male person walking into the store who approached [TN] while she was talking to some customers. TN stopped attending to these customers and had a conversation with this man. Then she left the storeroom with this man leaving the customers unattended.
9. [TN] came back at about 1.30pm. I approached her and said something to the effect of “[TN] did you ask Mr [AB] that you were going out to lunch?” she said “I told [EW]”. I said words to the effect of “[EW] has no authority and you should not have left whilst you were with a customer. Leaving a customer is something we never do as it is rude and could jeopardise a sale.” She said words to the effect of “what’s the big issue?” I told [EW] I was going to lunch”. After this conversation [TN] left me and resumed her normal duties.
10. Later that afternoon, I spoke to my brother-in-law [MB] a director of [BF] and to my father-in-law and told them what had happened. I said to them words to the effect of “I have to let you know that today at lunchtime [TN] went out to lunch and left a customer unattended. She went out with another man who had just walked into the store”. [MB] said words to the effect of “that’s very disappointing, she should not have done that, I will talk to her”. My father-in-law also expressed his disappointment at her behaviour.
11. Sometime after that I saw [TN] go into my father-in-law’s office and I heard her speaking in a raised voice. I also heard my brother-in-law [MB] speaking in a raised voice but I could not understand what was said as I was not in the office.
A similar account is contained in the MB Affidavit, although part of that testimony was objected to under the hearsay rule. TN agreed in cross-examination that she left some customers that she was attending to in order to attend to a male customer that was a friend of hers. The sequence of cross-examination was as follows:
Canceri: See, I suggest to you this is what happened: you're on the showroom floor and you were attending to some customers; correct?
TN: Yes.
Canceri: And then a male customer walked in, and you attended to that male customer.
TN: Yes.
Canceri: Do you remember that?
TN: Yes.
Canceri: Was that male customer a friend of yours?
TN: Yes.
Canceri: And after a while you left with that customer to go to lunch.
TN: No, no, no, that customer left and then I served the Cambodian customer, and then [EW]come and tell me, “Okay, time for lunch; let me serve them; you go."
Canceri: But you agree that you had served a friend at the showroom?
TN: What's wrong with a friend? A friend can come there and buy furniture; what's wrong? So when you work in a place you can't serve a customer which is your friend?
Canceri: Did you sell any furniture to your friend?
TN: Not yet. They – because that's the first time; they need time to think.
(T/ 47.21-48.3)
After being pressed, TN agreed that she went to lunch with her friend that she had been attending to, although she suggested they went to lunch separately (T/48.43-49.1-22). TN said nothing about the important assertion by the Respondents that she left customers to attend to a friend whom she subsequently had lunch with. In her cross-examination TN, for the first time, gave evidence about attending to the male customer, who was her friend, and later having lunch with him. The fact that she gave evidence about these matters which form part of the evidence of GC and MB, strengthens the evidence of GC and MB that TN was counselled about leaving customers to attend to a friend who she later went off to lunch with. GC and MB were not shaken in their respective cross-examination on this factual issue. It is submitted that TN had been counselled about leaving customers and this is what led to the confrontation with AB and MB, ultimately resulting in her summary dismissal.
It is submitted that TN has given untruthful evidence about the reason for her conformation with AB, and the confrontation was not because of AB’s jealousy about TN attending to male customers, or that EW had touched her. The manner in which TN approached AB on 4 May 2009 is inconsistent with her evidence that she felt in danger in his presence because she had no hesitation in storming into AB’s office to confront him. The actions of TN are inconsistent with the claim of her alleged fear in AB’s presence.
The fourth issue in respect of TN’s credibility concerns the alleged statements made to the police officers that she had been sexually assaulted by AB. It is not in dispute that on 4 May 2009 police officers attended BF’s showrooms after being contacted by an employee of BF in order to remove TN. TN does not dispute the fact that she was escorted from the Workplace showroom by police officers. In cross-examination the following evidence was given:
Canceri: And then the police were called.
TN: Yes.
Canceri: And they came.
TN: And they came, yes.
Canceri: And they told you to leave.
TN: No. The asked – at first they asked and then when they know I work there they said they can’t sort the disagreement between boss and the worker and they tell me better I leave. I said, “Okay, I’m leaving”, and then that time I remember he hasn’t paid me the art yet so I said, “Okay I’m leaving if you write me a cheque to pay me the art”, and then he tell me, “I don’t need your art any more. Take it back”. But that time he already hang it on his showroom and I said, “That’s not right. You hang it on your showroom. You have to pay me”, and then I walked out and follow [AA] till [AA] write a cheque for me and then I leave.
Canceri: But did you leave with the police officers?
TN: Yes, of course. The police – because they was there so they have to do their job and actually in the office I tell the police they assault me and I tell them I will go to the police station after I leave. I did tell the police that and I already mentioned in my statement too.
Canceri: Are you saying that you told the police when ‑ ‑ ‑
TN: Yes.
Canceri: ‑ ‑ ‑ they attended ‑ ‑ ‑
TN: Yes.
Canceri: ‑ ‑ ‑ that you had been assaulted?
TN: Yes. Sexual assault by Mr [AB]. I did tell the police. I already mentioned in the statement too.
(T/ 52.11-53.2)
It is submitted that there are serious concerns about the truthfulness of TN’s evidence on this point, for the following reasons:
a)The TN Affidavit says nothing about having told the police that she had been sexually assaulted by AB; and
b)Neither of the police statements dated 8 May 2009 (the “First Police Statement”) and 13 May 2009 (the “Second Police Statement”) mentioned that she told the attending police officers that AB had sexually assaulted her.
TN was invited to look at her Police Statements when she gave evidence that she had mentioned in one of those statements that she had told the attending police officer that she had been sexually assaulted.
The cross-examination is as follows:
Canceri: Which statement did you mention it in?
TN: I don’t remember. First or second but I did tell the police.
Canceri: It’s not mentioned in your affidavit, is it?
TN: I don’t know because – then check with the statement. I did mention it. I know for sure. Hang on. Let me see here.
Canceri: Are you looking at your police statement dated 8 May 2009?
TN: Yes, yes. No, this one I didn’t so must be the second statement with the police.
Canceri: Can you show me where in the second statement dated 13 May 2009 you say that you told the police on that occasion that you had been assaulted?
TN: No, is not here but I did mention to police. I know for sure but they didn’t put it here but I did mention it.
Canceri: I suggest to you not at any stage did you mention to the police that ‑ ‑ ‑
TN: I did mention.
Canceri: ‑ ‑ ‑ you had been assaulted.
(T/ 53.4-24)
Mr Canceri suggested to TN that this would have been an important matter to mention in her Police Statements, because if TN was so traumatised by what occurred on 3 May 2009, and the confrontation with AB allegedly related in large part to her sexual harassment, it would be expected that she would have raised this matter with attending police and stated in either one of her Police Statements that she complained to the attending police officers of having been “sexually assaulted”. It is submitted that TN did not mention her complaint to the attending police officers in either one of her police statements because she did not complain. It is submitted that TN did not complain because she knew in her mind that AB’s conduct on 3 May 2009 and the other three occasions was not conduct that was unwelcomed.
The fifth issue in respect to TN’s credibility concerns her conduct in returning to work on 4 May 2009 after the incident of 3 May 2009 and wanting to work closely with EW in order to try and learn from him is conduct inconsistent with her being traumatised by what happened on 3 May 2009 and feeling in fear of AB. In the TN Affidavit at [22] she states:
22. I reported what had happened that evening to my husband and was in tears. I attended work the following day, on 4 May 2009 and tried to avoid Mr [AB]. The morning I worked closely with [EW] in order to try to learn from him. [GC] approached me and said that “Mr [AB] prefers that I don’t serve customers with [EW]”. I was upset by this as [EW] was the best salesperson and I wanted to learn from him.
In cross-examination, the following sequence of questions occurred:
Canceri: You returned to work the following day?
TN: Yes.
Canceri: And it was 4 May 2009?
TN: Yes.
Canceri: You wanted to work closely with [EW] from that day?
TN: No, no. Okay, I tell you what happened. The next day I tried to avoid with the pressure, and that day I was busy. So I serve a lot of customer until – I still remember the last customer I serve was a Cambodian couple. I was serving them upstairs and they – I showed them around, and then it was around 1 o'clock, later, then lunchtime, [EW] approached me and [EW] said, “Okay, let me serve them. You go and have lunch."
(T/45.10-25)
The evidence in cross-examination on this factual issue is totally at odds with the evidence contained in [22] of the TN Affidavit.
The sixth issue in respect of TN’s credibility concerns her return to the showroom with her husband on the day that she was dismissed. These actions are not actions of someone who had been traumatised by the incident of sexual harassment and who was in fear of AB. TN claims that she was not scared when she returned to the showroom because she was in the presence of her husband. The sequence of cross-examination was as follows:
Canceri: And you confronted Mr [AB], didn’t you?
TN: Yes.
Canceri: Your husband was with you?
TN: Yes.
Canceri: You weren’t scared at that stage, were you, of Mr [AB]?
TN: Because my husband with me.
Canceri: You were angry at your job being terminated?
TN: No, not my job terminated but how he treated me. I didn’t deserve that and after he did it wrong her terminate me.
Canceri: And did you threaten Mr [AB]?
TN: No.
Canceri: Did you make any threat to him?
TN: No. My husband just said he wanted to talk to him in private because he copy the video to the memory stick and then he put on the table for Mr [AB] and he want to talk to Mr [AB] because he just want to know why he did that to me and [AM] was there with Mr [AB] in the room and my husband said, “Could you ask [AM] out”, and Mr [AB] said, “No, she stay here”, and my husband said, “Okay if that then you may see yourself in the paper tomorrow”, because my husband think he will report it.
Canceri: Did you threaten Mr [AB]?
TN: No, I don’t. How can I say to him?
(T/63.1-35)
This is inconsistent with TN’s evidence at [25] of the TN Affidavit, where she states:
25. I told Mr [AB] that I would leave as long as he paid me for the art that he had collected from my house. Mr [AB] told me that he did not want the art anymore and I told him that he already agreed to pay for it. I then threatened that he either pay me or I would show the police the video on my telephone. Mr [AB] then gave me a cheque and I went home.
The seventh issue in respect to TN’s credibility concerns her knowledge of the contents of Dr Akkerman’s report. In cross-examination, TN states that she was only aware that the report of Dr Akkerman was not good and that her treating general practitioner, Dr Nguyen, had not told her of Dr Akkerman’s opinion that she was malingering. However, the clinical records of Dr Nguyen in relation to a case conference that Dr Nguyen had with TN and the Workers’ Compensation case manager Sarah Bollom in November 2010, note that TN was “angry and depressed at Dr Akkerman’s report that she is a malingerer!” (Exhibit “R9”).
In cross-examination the following sequence of questions and answers occurred:
Canceri: : And I suggest to you that you had a case conference in November 2010 with Dr Nguyen and a person by the name of, I think it’s Sarah [Bollom]
TN: Yes. That’s the person she told me about Dr [Akkerman]’s report. Yes, that’s her name.
Canceri: And that case conference went from about 4.30 to 5.10 pm?
TN: Yes, in the afternoon. I remember, yes.
Canceri: Now, Dr Nguyen says this in his notes:
[TN] v angry and depressed re [Akkerman]’s report that she’s a malinger! Upset and tearful. Full of anger and sense of injustice. He’s still safe out there doing similar things to other people.
TN: Yes. That must be Sarah tell Dr Nguyen about a report and I was there. Now I know wherefrom I get the information that report. Now I remember.
(T/78.39-79.10)
Dr Nguyen has recorded the duration of the case conference lasting 40 minutes. In accordance with the clinical records there would have been substantial discussion about Dr Akkerman’s report because it struck at the heart of TN’s workers’ compensation claim.
In the Respondents’ closing submissions, it is submitted that in the report of 27 October 2010 (Exhibit “R9”), Dr Akkerman very clearly notes in the final paragraph on p.1 of the report that occurred during his examination of TN. Amongst other things, he mentions that TN’s husband initially ignored a request that he wait in the examination room. This is put to TN during cross-examination in which she responded:
TN: That bullshit.
(T/67. 41)
Dr Akkerman was not required for cross-examination accordingly, it is submitted that Dr Akkerman’s account of what occurred during the examination ought to be accepted and TN’s rejected. The cross-examination of TN about what occurred during her examination by Dr Akkerman shows TN to have been combative and evasive.
The eighth issue in respect of TN’s credibility concerns her “suicide attempt” in 2010. In cross-examination the following sequence of evidence was given:
Canceri: And you’ve given evidence about the attempted suicide at Chipping Norton Lake.
TN: To who?
Canceri: To this court. You’ve said in your affidavit and ‑ ‑ ‑
TN: Yes.
Canceri: ‑ ‑ ‑ to the statements given to the police. In 2010 did you attempt suicide?
TN: Yes. I – that time I was really sad because I went off my medication and the insurance – there was delay in paying me and they delay send me to a doctor and I miss a few appointment with Dr Benjamin. I – I straight out, I cut myself. I cut my wrist.
Canceri: Sorry? And that was because?
TN: Because I run out medication.
Canceri: You ran out of medication?
TN: Yes.
Canceri: And you also mentioned the Worker’s Compensation insurance?
TN: Because they have – they usually – what they do is they send a person to my house and drive me to see a doctor but that time they just cut out – they don’t send that person in and I think I missed two or three appointment with doctor and on my script it run out so I’m out the medication.
Canceri: Did you go to hospital?
TN: Yes. The police came and the ambulance came and they drive me to hospital again.
Canceri: And you went to hospital and you said to someone at the hospital that you thought if you cut yourself and die maybe your case would be heard?
TN: No, no, no. I just say, okay, I’m out the medication so I was really stressed that time and because the hospital wasn’t have any bed so I have to go home.
(T/71.7-72.4)
The Court must be conscious of the fallibility of memory and the distorting impact of self-interest. How a witness gives evidence is an important consideration. Thus a witness who “gives evidence in the forthright way, unperturbed under cross-examination, the court may well be disposed to believing the evidence that would be the case with a halting and prevaricating witness”: Cross on Evidence, Seventh Australian Edition, J. D. Heydon, Lexis Nexis Butterworths at [1285]. Nonetheless the Court must be very careful in making findings based solely on demeanour and must provide an adequate reason for making such findings: Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 per Ipp JA (Mason P and Tobias JA agreeing) at [29], where his Honour stated:
29. Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.
The respective sub-issues are listed above, together with reference to the submissions and arguments advanced for each issue. I acknowledge that aspects of BF, in respect of staff recruitment and direction were unusual and not what would be expected in an established retail environment. However, I have taken these unusual features into account and put them to one side and focused on TN as she appeared in the witness box during cross-examination when, substantially, the evidence was traversed over a period of approximately two hours. I accept that the giving of evidence is extremely stressful for anybody placed in that position. With the benefit of the material placed before the Court I have formed the view that the contents of the TN Affidavit and oral evidence demonstrate that the details therein had been well rehearsed to fit the claim. A number of significant gaps which are set out elsewhere in this judgment remain unexplained. These gaps cannot be put down to fallibility of memory as the body of evidence does not support this explanation, nor do the recorded observations of other witnesses support a proposition that TN was a credible witness.
Unwelcome Conduct
The relevant law at the time of the events alleged by TN were ss.28A and 28B of the Sex Discrimination Act in Division 3 of Part II, which relevantly provided:
Section 28A - Meaning of sexual harassment
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
“conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
Section 28B - Employment, partnerships etc.
…
(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of either or both of those persons.
(7) In this section:
“place” includes a ship, aircraft or vehicle.
“workplace” means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.
“workplace participant” means any of the following:
(a) an employer or employee;
…
TN will have made out her allegations that she was sexually harassed by AB in contravention of the Sex Discrimination Act if she proves that the conduct which she alleges occurred was of a sexual nature and unwelcome, or amounted to an unwelcome sexual advance or request for sexual favours and that a reasonable person in the circumstances would have anticipated that she would be offended, humiliated or intimated by that contact. The test of what a reasonable person would have anticipated is an objective one and turns on a reasonable person’s state of mind, not on AB’s state of mind: Leslie v Graham [2002] FCA 32 at [70]; CGU Insurance Ltd v Porthouse (2008) 235 CLR 103 at [108]. If those allegations are made out, AB will be primarily liable for acts of sexual harassment and BF potentially vicariously liable under s.106 of the Sex Discrimination Act.
In O’Callaghan v Loder [1983] 3 NSWLR 89 the Equal Opportunity Tribunal considered the interpretation of s.24(1) of the Anti-Discrimination Act 1977 (NSW). After an extensive review of the English, Canadian and American legislation and authorities, Mathews DCJ concluded that unwanted and unsolicited sexual conduct by a complainant’s employer in such circumstances that the employer knew or ought to have known that the conduct was unwelcomed, would amount to a contravention of the Anti-Discrimination Act 1977 (NSW), if the conduct was such that to create an unwelcome feature of the employment so that it was to fall within paragraph 25(2)(a) or to be a detriment under paragraph 25(2)(c), if the employer secured compliance with his sexual demand by threatening adverse employment consequences, if rejection of the employer’s sexual demands led to retaliation in the form of loss of access to employment opportunities, or if rejection of the employer’s sexual demand(s) led to retaliation of form of dismissal or some other loss of tangible employment benefits.
In Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 at [531]-[532], their Honours Lockhart, Wilcox and French (as he then was) JJ followed her Honour Mathews DCJ and held:
9. The second observation which I make is that sub-s.(3) focusses attention upon the nature of the sexual conduct. The sub-section does not treat as sexual harassment all conduct of a sexual nature. The relevant conduct must be “unwelcome", that is unwelcome to the recipient of that conduct. In that connection I adopt the understanding of the word “unwelcome” voiced by Spender J in Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1 at p 5:
“By 'unwelcome', I take it that the advance,
request or conduct was not solicited or
invited by the employee, and the employee
regarded the conduct as undesirable or offensive."But it is not enough that the conduct merely be unwelcome sexual conduct. Unwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment. The word "harass" implies the instillation of fear or the infliction of damage; as is indicated by the definition of the term in the Macquarie Dictionary:
“1. to trouble by repeated attacks,
incursions, etc., as in war or hostilities;
harry; raid. 2. to disturb persistently;
torment, as with troubles, cares, etc."10. Consistently with this understanding of the term, sub-s.(3) goes on to make it an element of the conduct there described that the conduct has one of two particular features. The first feature, mentioned in para.(a), is fear: that the recipient of the conduct has reasonable grounds for believing that an adverse reaction to the conduct would occasion a disadvantage to that person in connection with actual or possible employment or work. The essence of conduct falling within para.(a) is exploitation; the harasser is able to take advantage of his or her superior position in connection with employment or work in order to force unwelcome sexual conduct upon another person. It is important to note that, consistently with the underlying policy of focussing upon objective facts, para.(a) does not require proof that the recipient of the conduct did in fact fear disadvantage. The test is whether a person in the position of the recipient had reasonable grounds for a fear of disadvantage. All the circumstances relating to the individual must be considered, including that person's work position and personal characteristics, but it is then for the tribunal of fact to determine the existence of reasonable grounds for that belief.
11. The alternative feature which turns unwelcome sexual conduct into sexual harassment -- under para.(b) -- is disadvantage; disadvantage in connection with the recipient's actual or possible employment or work and flowing from the recipient's rejection of the unwelcome sexual conduct. If actual disadvantage is shown, it is not necessary also to show the existence of reasonable grounds for belief under para.(a).
Importantly, TN bears the onus of establishing that the conduct was unwelcome and, despite the subsequent claims that she was offended, this is not consistent with her actions at the time. This is demonstrated by the following:
a)The alleged offence took place on the afternoon of 3 May 2009;
b)TN did not attempt to leave AB’s office when the alleged offence took place and remained to film on her mobile phone for 4 minutes and 31 seconds of the event;
c)No complaint was raised on that day after the event and TN returned to work on the following day on 4 May 2009 and continued her normal duties;
d)Upon TN’s return from lunch on 4 May 2009 she was spoken to by GC concerning the abandonment of store customers immediately before she departed the store to have lunch. After this rebuke, TN approached and entered AB’s office, then a loud exchange between those parties occurred;
e)Subsequent to this exchange MB became involved and TN was summarily dismissed, however she declined to depart the building resulting in the police being called to assist in her removal;
f)In the First Police Statement made by TN on 8 May 2009 (MFI “3”), TN describes the events of 4 May 2009 and then proceeds to give the following statements as to what occurred on 4 May 2009;
33. Later that day I was trying to serve some customers with another sales person called [EW]. Mr [AB] didn’t like me to work closely with [EW]. [GC], Mr [AB]’s son in law called me aside to talk to me about working with [EW]. [GC] did not want me to work with [EW] when serving customers and this made me upset as I wanted to learn from [EW] because he was the best salesperson the store.
34. I went to see Mr [AB] to complain about not being able to work with [EW]. Mr [AB] started to ask me silly questions like, “did [EW] touch you when you went upstairs”. Mr [AB] said to me “I don’t want you to work with [EW].” This made me even more upset.
I said “I have the video of you and me and [AM]”.
Mr [AB] said, “what video”
I said “what you did yesterday. When are you going to stop that silly thing?”
Mr [AB]’s son, [MB] (I think that is his name) was also in the office and said, “if you don’t want to work then you are fired”
Mr [AB] asked me “what is the video”
Mr [AB] or [MB], I cannot remember who asked [AA] to call the police.
35. Soon the police came and made me leave the store.
At no point in the First Police Statement does TN indicate that she was offended, humiliated, or intimidated by the events she described as occurring in AB’s office on 3 May 2009. On the contrary, in respect of this event and on other occasions when AB asked questions as to her removing her stockings, stripping or masturbating in front of him, her replies included “when are you going to stop being silly” or words to that effect. In one exchange when AB offered to pay TN and AM $500 each to take off their clothes, TN claims that she responded by saying “no, I am not a hooker” and AM is alleged to have said “how about $10,000?” AB is alleged to have responded by saying “forget about it”.
The Second Police Statement made on 13 and 19 May 2009 (Exhibit “R12”) is more detailed and longer in length. Significantly, the emphasis is very different from that contained in the First Police Statement. From the material before the Court, I am satisfied that the events that occurred on the afternoon of 4 May 2009 are much more likely to be those set out in the First Police Statement, which indicates that the events surrounding the summary dismissal of TN were probably related to the rebuke that she received from GC concerning her leaving customers unattended and the direction not to work with EW. This appears to have resulted in her going to AB’s office to complain about this direction (which is consistent with the First Police Statement). TN’s uninvited and unannounced entry into AB’s office in the presence of his son, MB, to complain about the directions given by GC appears to be the real substance of the incident. There is nothing to support TN’s claims that this event had anything to do with complaining about the events of 3 May 2009. This is coupled with a leap in logic as to why, after a period of 24 hours, TN would return to complain to AB about his behaviour, rather than delivering the complaint through someone, such as GC who was the store’s General Manager and Director. The absence of any reference to the alleged sexual harassment during the events of the afternoon of 4 May 2009 to anyone associated with the operations of BF, or to the police officers, does not sit with the sexual harassment claim.
It is not until the Second Police Statement that there is any suggestion that the activities of AB were unwelcomed.
The private investigator, Ms Elizabeth Cross, retained by the Workers’ Compensation Insurer, took a statement from AB in October 2009 (Exhibit “R5”) (redacted version, reproduced at [41] above). According to the Statement, AB told Ms Cross that during TN’s second interview on 26 April 2009, AB observed that TN was wearing a skirt that was short and he said to TN that she needed to wear more suitable attire in her sales role, to which she responded by standing up and pulling up her skirt and saying “how about this?” AB says that he asked TN to masturbate and she proceeded to do so while he also masturbated. AB stated that TN did not appear uncomfortable. TN denies that this occurred, but this type of behaviour is the sort that would be expected from a person suffering from personality disorder with histrionic traits.
The actual scenario of TN behaving in this way that she is alleged to have behaved during her second interview was put to Dr Benjamin in cross-examination, where he agreed that this type of behaviour was consistent with someone who had histrionic personality disorder:
Canceri: Can I just get you to assume this scenario. A female in her mid-twenties goes to a job interview. It’s her second job interview. And during that interview with the prospective employer, she pulls up her skirt in front of the prospective employer and says words to the effect of, what about this? And that’s in response to the prospective employer making a comment about the business attire being worn by the applicant. And then that prospective employee or applicant then touches her genital area in a provocative way. Is that the type of behaviour consistent with someone exhibiting histrionic personality disorder?
Dr Benjamin: Yes. People with histrionic personality often act in a seductive and over-sexual manner. If this was true – I don’t know if that was true, but that – that would be ‑ ‑ ‑
Canceri: No, just assuming ‑ ‑ ‑ ?
Dr Benjamin: Yes.
Canceri: ‑ ‑ ‑ that factual scenario?
Dr Benjamin: Yes.
(T/151.33-46)
Consistent with what AB told the private investigator in October 2009, it was put to TN in further cross-examination that when she was sitting on the couch in AB’s office on 3 May 2009, she touched herself in the genital area in order to arouse AB. Specifically
Canceri: Well, I want to suggest to you this. That, when you were sitting on the couch in AB's office on 3 May 2009, you were touching yourself in the genital area in order to have AB aroused?
TN: No, that’s not true.
(T/ 105.33-33)
Given the evidence of Dr Benjamin that the behaviour suggested to him is consistent with someone having histrionic personality disorder and the doctor’s diagnosis that TN exhibited traits of borderline and histrionic personality disorder, there is insufficient evidence before this Court in relation to the incident on 3 May 2009 to establish what occurred other than what is contained in the video footage (Exhibit “R7”). However, it appears that from viewing the video footage that AB became aroused in response to either the presence or actions of TN and AM. Listening to the audio recorded on the video footage, one can hear AB say at 3:46, “touch her, touch her properly, touch her inside”. Counsel for the Respondents invites the Court to draw an inference that something provocative is happening in front of AB to have him aroused. AB, in his Statement to the Investigator states that TN touched her genital area.
The alleged incident on 29 April 2009, dealt with by TN in the TN Affidavit at [15], does not feature in the First Police Statement. However, it does feature in the Second Police Statement. The same applies in relation to the incident alleged that occurred on 2 May 2009 in the TN Affidavit at [19]. TN blames the incompleteness of her First Police Statement on the way she was feeling at the time she gave it. TN stated that she was confused and somewhat distressed, but the evidence is that she left Liverpool Hospital in a positive and happy frame of mind and this is recorded by the hospital staff in their clinical record (Exhibit “R8”). The Court has been invited to be critical of both TN’s Police Statements on the basis of TN’s propensity to exaggerate and embellish, resulting in her giving Statements to the police concerning the alleged sexual harassment. I am not satisfied that TN has established that she was so distressed and confused after the incident of 3 May 2009 that she failed to mention that it occurred to the police. Other than the video evidence, very serious doubt exists as to the truthfulness of AB’s Statement or the combined evidence of TN. For TN to establish her case she is required to put forward corroborative evidence, however, this has not been forthcoming.
Psychiatric Injuries
The Court is being asked to make a finding in respect to TN as to whether she has suffered psychiatric injury as the result of the alleged sexual harassment. Both Dr Akkerman and Dr Benjamin have prepared opinions which have been filed in these proceedings and have been cross-examined on the contents of those reports. Submissions have been made that the opinion of Dr Akkerman should be disregarded because it was based on a few minutes examination of TN about the time of TN’s suicide attempt by cutting her wrist. However, the examination was short because TN was completely uncooperative, as was her husband. Dr Akkerman notes in his report of 27 October 2010 (Exhibit “R6”) that TN arrived with her husband and baby and, despite Dr Akkerman’s request that her husband remain in the waiting room with the baby as it was not conducive to conduct an examination process in the presence of a young baby, the request was ignored by TN’s husband. Dr Akkerman noted that TN clung to her husband’s arm in an exaggerated manner saying that she wanted her husband to be present. Dr Akkerman told TN that her husband could sit in the corridor where she could actually see him but could not hear the baby. Eventually, TN agreed to this and proceeded to sit with her back towards her husband and baby so eye contact could not be maintained. Dr Akkerman noted that TN exaggerated her symptoms and that she was irritable and uncooperative. In response to Dr Akkerman asking TN about her symptoms and she responded “you have the paperwork, why are you asking me all these questions?”
Dr Akkerman had several reports from Dr Benjamin, together with surveillance footage of TN which had been recorded by Insurance Investigators. Dr Akkerman stated that TN exaggerated her symptoms and acted in a manner that she believed reflected severe mental illness. He stated that TN’s behaviour was under voluntary control and totally different to that displayed on the surveillance footage. Dr Akkerman did not solely rely on his examination of TN to formulate his opinion that she was malingering.
Counsel for the Respondents contends that the opinion of Dr Akkerman should be preferred to the opinions expressed by Dr Benjamin and Ms Yusuf. The reason is that the opinion that TN is malingering is consistent with the opinion of Dr Benjamin that TN suffered from a pre-existing personality disorder, mainly with histrionic and borderline traits. The extract on histrionic personality disorder (Exhibit “R11”, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (DSM-5), May 2013, p.667 [301.50]) refers to self-traumatisation, theatricality and exaggerated expressions of emotion as some of the “Diagnostic Criteria” of histrionic personality disorder. The full list is as follows:
A persuasive pattern of excessive emotionality and attention seeking, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
1. Is uncomfortable in situations in which he or she is not the centre of attention.
2. Interaction with others is often characterised by inappropriate sexually seductive or provocative behaviour.
3. Displays rapidly shifting and shallow expression of emotions.
4. Consistently uses physical appearance to draw attention to self.
5. Has a style of speech that is excessively impressionistic and lacking in detail.
6. Shows self-determination, theatricality, and exaggerated expression of emotion.
7. Is suggestable (i.e., easily influenced by others or circumstances).
8. Considers relationships to be more intimate than they actually are.
The extract states that an essential feature of histrionic personality disorder is persuasive and excessive emotionality and attention seeking behaviour. This material, together with the credibility issues above, confirms that it is not possible to establish that TN has proved her case on the balance of probabilities.
In the submissions that have been tendered in this matter, the Court has been called upon to resolve issues of fact, but I am not satisfied on the material before this Court that the resolution of those key issues can be made and the application should be dismissed. This raises the issue of costs, which would normally follow the event, however, in this matter which raises very serious allegations it is not possible to directly identify the responsible party. Many issues remain unanswered, particularly in respect of the failure to call some key witnesses without explanation. Further, the events that occurred, evidenced by video and whether they were provoked, encouraged or welcomed are not able to be determined on the evidence. Consequently, I believe that the application should be dismissed and all parties should meet their own costs.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 12 June 2015
Annexure “A”
Statement in the matter of: TN
Date: 29 June 2009
Address where statement obtained: Offices of Trans Solicitors and Attorneys
Investigator: Elizabeth Cross
1. This statement made by me accurately set out the evidence, which I would be prepared, if necessary to give in Court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything I know to be false or do not believe to be true.
2. On either 23 or 24 April 2009 I observed an advertisement in the Vietnamese Newspaper known as the Chieu Duong for a position as a Sales Assistant at [BF], [Sydney Suburb]. I had previous experience in sales while I was employed for a period of about two weeks at [a retailer in the same industry in a nearby suburb], so I applied for the position.
3. The same day I received a call from “[AA]” who identified herself as [AB]’s Personal Assistant as asked me to attend a job interview that day. When I arrived at the store, I was asked by [AA] to meet with [AB] in his office which was located above a flight of stairs, overlooking the showroom below.
4. During the job interview [AA] asked me several questions such as the length of time I have been in Australia and my previous work experience. [AB] did not ask me any questions and only commented that I had nice legs. He and [AA] laughed together when he made this comment. Another female staff member entered the room and introduced herself as “[AM]”. [AB] addressed [AM], gestured to me and said, “Isn’t she beautiful?” [AM] stood beside [AB] and he tried to wrap his arms around her. [AM] giggled and smiled, she did not say anything to [AB]. While I found the behaviour odd for a job interview, it appeared that [AB] was just a silly old man and that his staff seemed to like him. [AA] is Indonesian and [AM] is Vietnamese, young, slim with a baby face.
5. [AB] then asked [AM] and [AA], “Will we take her?” I believed that I had the job but went (sic) sure of the details at that time. I was told that I would be paid $700 per week before tax.
6. The following day, being a Saturday, I received a telephone call from [AB] asking me to attend the store immediately. I arrived at about 10am and attended [AB]’s office. He asked me how I felt and whether I had slept well. I asked him if I had the job and he said yes. I asked him when I was to start and he said, “How about now?” I told him that I did not have proper attire to start and would need to go shopping for a suit. [AB] then told me that he did not think I had money to buy clothes and proceeded to hand me $500.
7. [AB] then started to divulge personal information including the fact that his wife was a “bitch” and that he was going to buy a house. He then suddenly asked me if $500 was enough. I answered, “I don’t know”. He asked for the money back, and I gave it to him, then he proceeded to give me $1000 in hundred dollar notes and told me not to tell anyone. At that time I considered myself lucky to have such a nice boss.
8. [AB] gave [AM] money to buy lunch and I drove to Red Rooster with [AM] to buy lunch for us and also [AB]. I left the store at about 2pm that day as I needed to have a problem with my husband’s car attended to.
9. I commenced work at 9am on Monday 27 April 2009. I was not provided with a job description. I received training from [AB]’s son, [GC], with regard to the nature of my job. That morning, he took me around the store and explained every piece of furniture, where it was from and how it was made. I did not serve customers that day as the store was very quiet.
10. [AM] asked me to attend lunch in [AB]’s office that day. [AB] provided lunch for [AM] and I in his office and [GC] and the other Sales Assistant, “[EW]” ate their lunch in the staff room. I then returned to my duties and continued training with [GC]. I completed work at 5:30pm that day and was happy, though tired from all the information I had been given by [GC].
11. I returned to work at 9am the following day and underwent training from another Sales Assistant whose name I do not recall. She was about 50 years of ae and told me that she had been employed at the store for about one year.
12. [AM] asked me to attend lunch with her and [AB] in his office that day. The other Sales Assistant was not asked to attend lunch with [AB]. I later learned from [EW] that none of the other sales staff had ever been invited to lunch in [AB]’s office. Lunch lasted for a period of about half an hour at which time I returned to my duties.
13. Shortly afterwards, [AB] asked me to return to his office. He asked whether I wanted to have dinner with him. I said, “what about [AM]?” He said that she could come too if I wanted and called her into his office. He told [AM] that the three of us would go to dinner. [AM] asked for [A] to come and [AB] did not looked please, however, [AM] said that she would not go to dinner without [AA]. [AB] proceeded to call [AA] and told her to bring her daughter [JA] and her husband.
14. After work that day I drove [AM] to [Restaurant] and [AB] drove his own car there. Dinner was nice and there were no problems. After dinner I dropped [AM] off at a unit complex close to my own home. I later learned that [AM] did not live at that complex, she asked me to take her there as she did not want [AB] to know where she lived.
15. I attended work at 9am the following morning as usual. At about 2 or 3pm, [AB] called me into his office. The store was quiet. He asked me to sit opposite him and he began to talk with me. He showed me his medication and how he measures his blood sugar by pricking his finger. He then started talking sexually and I could see that he was doing something under the table with his right hand. He asked me whether I ever “touched myself”. He told me to take off my stockings, however, I did not. He leaned back in his chair and I knew that he was touching himself. He then pointed to the television screen in his office and told me that “Playboy TV have all the channels.” He seemed to be inviting me to watch the television. I had been there for about 20 minutes by that time and was feeling very uncomfortable so I told him that I needed to go to the toilet. He asked, “Will you come back?” And I said yes.
16. I did not return to his office and continued working until 5:30pm as normal. That night I was very quiet and told my husband that [AB] had been flirting with me. My husband, [HTN], asked me if I wanted to keep working and I told him that I did as I needed to pay off my credit card.
17. I attended work as usual the following day. [AB] called me into his office and asked me in the presence of [AM] when I wanted to attend dinner with him again, though it would only be [AM] and I next time. He said, “After dinner, you’re not going home, we rent a room upstairs.” When [AM] and I left his office [AM] commented to me in Vietnamese that [AB] was “dirty old man”. I finished work at 5:30pm as normal that day. I reported the events of that day to my husband.
18. I did not work on Friday, 1 May 2009 as [HTN] and I got married that day. Also on this day, [AB] sent a truck to my place to collect some pieces of art which were made of glass that I had purchased from Vietnam for about $50 a piece. [AB] had agreed to pay me $50 a piece for these in order to sell them at the store and the delivery drivers collected about 40 pieces that day.
19. I returned to work on 2 May. [AA], [AM] and I had lunch in [AB]’s office that day. Conversation was normal as it always was when [AA] was around. When [AA] left, [AB] starting flirting with is and asked us to move closer to each other and touch each other. [AM] said, “I am not a lesbian” and got up and moved to another chair. [AB] approached me and asked to take off my stockings, he then started to touch my leg. I stood up and moved away from him and closer to [AM]. [AM] had to leave the office to attend a customer enquiry and I followed her.
20. Later that afternoon [AM] told me that [AB] wanted me in his office. I asked her to come with me. She told me that she would meet me there soon. I attended his office and he started talking to me while he was touching himself. [AM] came to the office and we both walked out while he was touching himself.
21. I returned to work as usual on Sunday 3 May. Mr [AB] asked [AM] and I attend his office and sit on the lunge (sic: lounge) which was opposite his desk. While unzipping his pants, Mr [AB] said, “[TN] touch yourself, touch your pussy”, than “[AM], touch her, open your legs”. He told me to masturbate and make him come. He was masturbating. I decided to film him doing this with my mobile telephone and [AM] did so too. I was disgusted though did not want to leave as I did not want to lose my job. I was waiting for him to ejaculate so that I could leave the room.
22. I reported what had happened that evening to my husband and was in teas. I attended work the following day, on 4 May 2009 and tried to avoid Mr [AB]. The morning I worked closely with [EW] in order to try and learn from him. [GC] approached me and said that “Mr [AB] prefers that I don’t served customers with [EW]. I was upset by this as [EW] was the best salesperson and I wanted to learn from him.
23. I confronted Mr [AB] about the issue and it was it the first time that Mr [AB] had shown jealously regarding [EW] and other male customers. Mr [AB] asked me whether [EW] had “touched me”. I was quite upset with Mr [AB]. At this time, Mr [AB]’s son [MB], whom I had not worked with before approached me and said, “If you don’t like it, you don’t have to work here.”
24. By this time I was fed up and told Mr [AB] that he needed to stop his behaviour and abuse otherwise I had video evidence. [MB] starting yelling at me and asked me to leave the store. I told [MB] that I would not leave unless Mr [AB] asked me to. [MB] called the police and reported that I was causing trouble. Police Officers attended though told Mr [AB] that it was not their role to sort out disagreements between a manager and an employee.
25. I told Mr [AB] that I would leave as long as he paid me for the art that he had collected from my house. Mr [AB] told me that he did not want the art anymore and I told him that he had already agreed to pay for it. I then threatened that he either pay me or I would show police the video on my telephone. Mr [AB] then gave me the cheque and I went home.
26. My husband and I attended the store in the afternoon and brought the footage which had burned onto a memory stock with him. He put the stick on Mr [AB]’s desk and asked to speak with him privately, though Mr [AB] would not. My husband told Mr [AB] that his picture might be in the Sydney Morning Herald the next day and we left.
37. Mr [AB] tried to call me that day to ask how I felt, though I hung the telephone. [AA] later called and my husband answered my telephone. She told me that the cheque for the art had been cancelled.
28. I was so depressed and felt hopeless as I had no job, had been assaulted, unfairly dismissed and the cheque had been cancelled. I tried to take my life by driving my vehicle into Chipping Norton Lake. However, I was rescued and taken to Liverpool Hospital where I was admitted for a period of one week.
29. While I was in Hospital, my husband sought the advice of Solicitor, Philip Tran. I made a statement to Police on 13 may 2009. I believe that [AM] was approached by the police and she provided a statement. She remains in [BF]’s employ.
30. I consulted Dr Tien Nguyen, [a Sydney Suburb] some time in June though do not recall the date. He issued a WorkCover Certificate and referred me to Dr Samir Benjamin, Psychiatrist, located at Parramatta. I have consulted Dr Benjamin on two occasions in June 2009. Dr Benjamin also referred me to Psychologist Dr Joanne Yousif who is located in the same office. I have yet to see Dr Yousif.
31. I was prescribed with anti depressants by Dr Nguyen, however, I am currently seven weeks pregnant and cannot take it.
32. I remain unfit for work.
33. I have never suffered from depression or anxiety and have never consulted a doctor in relation to this. I have never taken anti depressants.
34. I have been employed in various positions since arriving in Australia four years ago.
35. I was married on 1 May 2009 and dated my husband for several months. My mother also resides in Sydney and I have a good relationship with her. I am in good health and have no financial pressures. My husband is employed on a full time basis and there are no other stressful factors in my life.
36. I have provided a copy of the two pay slips that I received while in [BF]’s employ to Philip Tran.
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