Treacy v Williams
[2006] FMCA 1336
•7 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TREACY v WILLIAMS | [2006] FMCA 1336 |
| HUMAN RIGHTS – Proceeding seeking relief in respect of alleged sexual harassment commenced in the Court following termination of a complaint made to the Human Rights and Equal Opportunity Commission – sections 28G and 28L SDA – motion filed by the respondent seeking an order summarily dismissing the application – whether application in proceeding before Federal Magistrates Court can allege acts of discrimination not alleged in terminated complaint – s.46PO(3) HREOC Act – relevance of privacy to conciliation conference – s.46PK(2) of HREOC Act. |
| Sex Discrimination Act 1984, ss.28G, 28L Human Rights and Equal Opportunity Commission Act 1986, ss.46PO(3), 46PK(2) |
| Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 (30 October 2000) Bender v Bovis lend Lease Pty Ltd [2003] FMCA 277 (9 July 2003) |
| Applicant: | CINDY LEE TREACY |
| Respondent: | SEAN WILLIAMS |
| File Number: | MLG 106 of 2006 |
| Judgment of: | Connolly FM |
| Hearing date: | 4 September 2006 |
| Date of Last Submission: | 4 September 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 7 September 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms Melinda Richards |
| Solicitors for the Respondent: | Mr Phillip Dicalfas, Mission Australia |
ORDERS
The application filed 20 January 2006 be dismissed.
The Applicant is ordered to pay the Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG106 of 2006
| CINDY LEE TREACY |
Applicant
And
| SEAN WILLIAMS |
Respondent
REASONS FOR JUDGMENT
Proceedings
These proceedings arise from the Applicant’s complaint that she was sexually harassed by the Respondent. The proceedings were instigated by the Applicant alleging that the Respondent’s conduct was sexual harassment in contravention of sections 28G and 28L of the Sex Discrimination Act 1984 (SDA).
The evidence supporting the application is contained in the Statement dated 8 June 2005 and signed by the Applicant on 15 June 2005 which was made for the purposes of the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA) and the SDA and the affidavit sworn by the Applicant 20 January 2006 and filed on the same date.
The Respondent filed a response seeking the dismissal of the application and also filed an affidavit sworn 22 February 2006 and filed 23 February 2006. In addition he filed an affidavit of Cary Pedicini and Mark Marini sworn both sworn on the 22 February 2006 and filed 23 February 2006. The Respondent denies each of the applicant’s allegations.
Background
The Applicant on 28 October 2004 started participation in the ‘Office to Go’ project conducted by Mission Australia as part of the work for the dole program. The Respondent Sean Williams was one of the project supervisors. On 26 October 2004 the Applicant signed a Workplace and Activity agreement which document was tendered and marked ‘Exhibit B’ as well as the Centrelink Preparing for Work agreement which document was also tendered and marked ‘Exhibit A’. The overall effect of these documents was that the applicant was required to work for the dole and would abide by the conditions imposed by virtue of the agreement.
The project known as “Office to Go” provided one off and seasonal off-site office administration support for community organisations. Participants in Office to Go produced simple databases, brochures, newsletters etcetera for community organisations. The program was conducted at the Preston office from 25 October 2004 until 24 April 2005. The project ran on Thursday and Friday of each week until 22 December 2004 when it changed to Wednesday and Friday. The Respondent and Mr Marini were two of the supervisors during this period of time. The Applicant exited the project during the week of the 22 December 2004 following a recommendation by the Respondent that the Applicant be removed on the basis she had displayed intimidatory behaviour to other participants and had refused to carry out project tasks. Prior to this she had been counselled by another member of staff Ms Purcell.
Mission Australia had in place a 3 stage complaints process as follows:-
Step 1: I) The complaint can be directed to a staff member by letter, fax, phone call or in person.
II) The staff member or supervisor will attempt to resolve the issue. If the matter is not resolved, then:
Step 2The clients are referred to DEWR Service Line to lodge a complaint or,
Step 3There are referred to the Commonwealth Ombudsman
The Applicant did not utilise any of these steps to make a complaint nor did Mission Australia receive any communication from the Applicant’s authorised Review Officer of Centrelink that the Applicant had experienced problems with the Respondent.
The Applicant in the complaint as terminated by HREOC alleges that he Respondent personally harassed her by the following actions:
a)Requesting her to “get in closer” when she was sitting away from him;
b)Sitting so close to her that their legs and bodies would touch and rub;
c)Generally invading her personal space;
d)Repeatedly looking or glaring at her; and
e)Unwanted flirting with her.
The Law
Based on the Notice of Termination the complaint is that the Respondents conduct contravenes sections 28G and 28L of the SDA which provides as follows:
28G Provision of goods, services and facilities
It is unlawful for a person to sexually harass another person in the course of providing, or offering to provide, goods, services or facilities to that other person.
28L Commonwealth laws and programs
It is unlawful for a person:
(a)in the course of performing any function, or exercising any power, under a Commonwealth law or for the purposes of a Commonwealth program; or
(b)in the course of carrying out any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program;
to sexually harass another person.
Further section 46 PO(3) of the HREOC precludes the Applicant from raising new material not mentioned in the complaint terminated by HREOC in that it provides:
46PO Application to court if complaint is terminated
(3)The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
and section 46PK(2) precludes reference at the hearing of what occurred at the conciliation conference:
46PK Proceedings at compulsory conference
(2)A compulsory conference is to be held in private and, subject to this Act, is to be conducted in such manner as the person presiding at the conference thinks fit.
Findings and conclusions
The Applicant in her affidavit sworn 20 January 2006 raised a number of matters not mentioned in her complaint as terminated from HREOC and in particular:-
a)That she was unfairly dismissed;
b)That her behaviour changed due to her seizures that she told staff about;
c)The Respondent used to sign her out at 4:30pm instead of 5.00pm saying that he wanted her out;
d)There was abuse from the other participants;
e)The Respondent called the Applicant names.
The Respondent responded to these matters in his affidavit but contended that section 46PO(3) of the HREOCA precludes the Applicant from relying on further allegations of unlawful discrimination. Although I have made findings about these matters I agree with the Respondents submissions that these matters were outside the course of conduct complained about to HREOC. The new matters alleged do not involve allegations of sexual harassment and in so far as they relate to the Respondent they raise conduct not previously complained of (that is, name calling and forcing the applicant to terminate her hours at 4:30pm instead of 5.00pm).
I am comforted in adopting this approach by what Lehane J in Travers v State of NSW [2000] FCA 1565 (3 November 2000) at Paragraph 8 determined as follows:
No doubt it was intended that a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation, alleging discrimination other than that of which a complaint had been made or covering a course of conduct substantially wider - or beginning substantially earlier - than that initially complained of. At the same time, it must be recognised that the terms of s 46PO(3) suggest a degree of flexibility ("or the same in substance as", "or substantially the same") and a complaint, which usually will not be drawn by a lawyer, should not be construed as if it were a pleading: Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188. Indeed, the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries by the relevant Commissioner: Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94. It may well be that the ambit of a complaint is to be ascertained, for the purpose of s 46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination. Counsel for the State contended that the "complaint" to be considered for the purpose of s 46PO(3) in this case comprised the letter of 10 February 1997 and nothing else. Although there is no need to reach a firm conclusion about it, there is in my view much to be said for the applicant's submission to the contrary.
A similar approach was adopted in Charles v Fuji Xeros Australia Pty Ltd [2000] FCA 1531 (30 October 2000) at 41 and Bender v Bovis lend Lease Pty Ltd [2003] FMCA 277 (9 July 2003) at 23.
The Respondent further contends that the affidavit made 21 January 2006 raised matters discussed during the conciliation conference and accordingly in breach of section 46PK(2) and inadmissible. I was satisfied that the words “during mediation with heroc [sic] the lawyer for Mr Williams called me a slut criminal” did fall into such a category and they were accordingly struck out.
In general terms I found the Applicant Ms Treacy’s evidence lacking credibility as she was evasive and unresponsive to questions and at others provided gratuitous information. Her evidence was inconsistent and she displayed a somewhat aggressive demeanour. Mr Williams was responsive to questions, consistent in the information he provided and impressed as a witness of truth.
It is clear that the Applicant had many opportunities to make a complaint about the alleged sexual harassment she received from Mr Williams. She was asked by Counsel for the Respondent:
“When you were doing the project of Mission Australia you knew didn’t you that you could complain if there was something wrong, something you weren’t happy about?”
She was initially evasive about answering the question but when directed to do so ultimately answered “Yes”.
It was further put:
“Did you know you could complain, you were able to make a complaint if there was something wrong, something you were not happy about?”
She answered “I guess I could have yes.” It was then suggested that:
“You could have complained to one of your supervisors to Mr Williams or Mr Marini could you not?”
She responded:
“There was no use complaining to Mr Marini but I complained to Joan Purcell.”
That complaint was made on 3 Decemeber 2004. She was questioned about that complaint:
“So your complaint was about the other participants? She replied “That’s right” “And the way they were behaving?” “That’s right” “The other participants, what are their names?” “Debbie, Peter and Chantal.”
She was further asked:
“At that time you didn’t make any complaint to Ms Purcell about Mr Williams, did you? “No”.
“No, you didn’t complain that he sat too close to you?” “No”
“Or that he had asked you to move in closer to him” “No they were all friends. Look what happened. They were all friends.”
“You didn’t complain to her that he had invaded your space?” “No”
“You didn’t complaint to her that he had glared at you or stared at you in any peculiar way?” “No”
“You didn’t complain to her that he had flirted with you?” “No”
“Nor did you make a complaint about any of those things to Mr Williams or anybody else at that time, did you?” “No”
“You didn’t mention them to Ms Coomara did you” “No”
“While you were on the project you made no mention of any complaint of sexual harassment to anyone at Mission Australia, did you?” “No”
There was evidence of a further conversation with Ms Purcell on
22 December 2004. The Applicant was asked were you aggressive towards Ms Penalt? She replied “I don’t know. I wasn’t myself”. It was then put to her that she didn’t make any complaint about Sean Williams on that occasion either and she admitted that she didn’t make any complaint on that occasion that he had sexually harassed her. This admission was forthcoming despite the fact that the conversation with Ms Purcell occurred almost immediately after an incident where Ms Treacy alleged that Mr Williams had moved his leg towards her and told her to sit closer.
Ms Treacy was then cross examined about making any complaint to Centrelink about the allegations of sexual harassment against Mr Williams. She responded
“Yes. I’ve got it here its my version” “I had to put up with sexual harassment, flirting, Mr Marini flirting with other girls and putting up with Debbie and Chantal harassing me as well as in the computer room”
There was no mention of Mr Williams. She was then asked to produce the complaint document she was referring to and she produced a Centrelink form signed on 14 February 2005 which was tendered and is ‘Exhibit C’. The document makes no mention of Mr Williams although it refers to unfair breach because of sexual harassment by male supervisor. It also alleged that there was flirting with other girls and harassment and abuse from other participants and it complained about Mark the supervisor flirting on a wet afternoon. There is nothing in the document which supports or confirms the allegations made against Mr Williams. Instead Ms Treacy conceded that the first occasion she complained that Mr Williams had sexually harassed her was in June 2005 to the Human Rights and Equal Opportunity Commission. In my view it is inconceivable that if Ms Treacy had been hurt, offended or humiliated by Mr Williams in the way that she alleged that she would have made no complaint until mid 2005 and I simply do not accept that the allegations have any substance at all. What’s more I am strengthened in this view having heard Mr Williams questioned about the matter. His affidavit setting out what occurred is detailed and firm about rejecting the allegation of Ms Treacy and I accept that evidence. His answers to questions were consistent and delivered in a way which indicated he had nothing to hide and were devoid of any animosity toward the Applicant. I accept that he acted with a professional and neutral attitude to the Applicant in his dealings with her.
Further, while there is no direct relevance to the allegation concerning sexual harassment, I accept the evident of Mr Williams and supported by Mr Marini of the general circumstances of the Applicants improper behaviour which led to her exiting the project. When cross examined about the last time she attended the Mission Australia office on
22 December in her discussion with Ms Purcell she said
“I asked to sign out at 2 o’clock and I said ‘Can I come back’ and so I walked off and said I was going to expose everything of what happened and was talking loudly, I wasn’t abusing anyone, there was no need to kick me out. Its just that I wasn’t working out there, I shouldn’t have been targeted. I went out of my way to be nice to everyone.”
There is nothing in the evidence that supports the Appplicant’s view that she went out of her way to be nice to everyone and indeed I am left with a clear picture of a person who is angry, talking loudly and unable to accept any assistance. Indeed she took the view very clearly that all her problems were the fault of others.
I accept that she behaved in a belligerent and aggressive way with respect to the supervisors and the other participants in the scheme and on the evidence before me I am satisfied that none of the alleged sexual harassment took place. What’s more I agree with the submission of the Respondent that even if it occurred, much of the conduct complained of is not conduct of a sexual nature or intimidatory.
I propose to dismiss the application and order that the Applicant pay the Respondents costs. I will hear argument as to the quantum of costs or as to whether they should be taxed according to the Federal Court Rules.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Deborah Rea
Date: 7 September 2006
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