Treglown v Eliam Pty Limited

[2010] NSWADT 196

CITATION:	Treglown v Eliam Pty Limited and anor [2010] NSWADT 196
DIVISION:	Equal Opportunity Division
PARTIES:	Applicant: Jamie-Lea Treglown Respondent: Elliam Pty Limited and Daniel Riley
FILE NUMBER:	091022
HEARING DATES:	2 November 2009 24 February 2010
SUBMISSIONS CLOSED:	24 February 2010
DATE OF DECISION:	4 August 2010
BEFORE:	Perrignon R - Judicial Member; Schneeweiss J - Non-Judicial Member ; Weule B - Non-Judicial Member
CATCHWORDS:	Sexual harrassment by employer or workplace participant – comments made in workpace - whether unwelcome – whether of a sexual nature – whether made in relation to the Applicant – whether a reasonable person would have anticipated the Applicant would be offended, humilated or intimidated – whether a director of the employer company was a ‘workplace participant’
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Aldridge v Booth (1988) 80 ALR 1 Carter v Linuki Pty Limited [2005] NSWADTAP 40 Elliott v Nanda (2001) 111 FCR 240 Jones v Dunkell [1959] 101 CLR 298
REPRESENTATION:	Applicant Representative: D Spencer, solicitor Respondent Representative: A Riley (First Respondent) D Riley (Second Respondent)
ORDERS:	Pursuant to section 108 of the Anti-Discrimination Act 1977, the complaint of sexual harassment is dismissed

REASONS FOR DECISION

1 From 17 December 2006 to 28 March 2008, the Applicant Ms Treglown worked at the Gloria Jeans Coffee Shop at Westfield, Tuggerah Lakes. Though paid at casual rates, she was employed on a part-time basis by the First Respondent, Elliam Pty Limited (‘the company’). The company’s directors and shareholders were Mr and Mrs Riley. Mrs Riley is also the company secretary. Mr Riley is the Second Respondent.

2 Ms Treglown was dismissed from her employment on 28 March 2008, after an altercation with Mr Riley.

3 On 2 May 2008, Ms Treglown complained to the Anti-Discrimination Board that her employer had discriminated against her on the grounds of sex and age. She later confirmed that she wished also to complain that Mr Riley had harassed her sexually at work. The complaints were based on certain comments of Mr Riley, allegedly made at the coffee shop to Ms Treglown, or in her presence.

4 The Board accepted the complaints of sex discrimination and sexual harassment during the period 2 May 2007 to 1 May 2008 (the ‘complaint period’). It declined to accept the complaint of age discrimination.

Jurisdiction

5 The Board has referred the complaints of sex discrimination and sexual harassment to the Tribunal pursuant to section 93C of the Anti-Discrimination Act 1977 (‘the Act”). The Tribunal may dismiss the claim in whole or in part, or find it substantiated in whole or in part: section 108(1). The Tribunal’s power to make a determination is limited to the terms of the complaint – that is, to making findings in respect of events which occurred during the complaint period.

Applicant’s case

6 Before the Tribunal, Ms Treglown did not argue that she was discriminated against on the ground of sex. She submitted that, in making the alleged comments, Mr Riley sexually harassed her, contrary to section 22B of the Anti-Discrimination Act 1977. She said that the company was liable for his comments, pursuant to section 53 of the Act, because he acted as its agent.

7 The comments complained of were as follows.

1) Referring to himself and Ms Treglown, Mr Riley said, ‘You and me are like a married couple’.

2) When observing how good-looking certain female staff, customers, friends or family were, Mr Riley said to Ms Treglown, ‘You should hear what I say about you when you’re not here’.

3) On observing shorts worn by female customers, Mr Riley said to Ms Treglown, ‘You should wear shorts like that as a part of the uniform’.

4) ‘I only hired Linda [another employee] because she came into the interview wearing a bikini top and had big boobs’.

5) ‘Linda is so good-looking. I would love for her to stay at my house and to be her boyfriend. I’m so jealous of her boyfriend.’

6) On seeing a female patron bend over: ‘Aw, I think I need to go home and have a cold shower. She is gorgeous.’

7) Of a female walking past with two children, ‘Aw, look at her chest. It’s gorgeous. Imagine going home to that every night’.

8) ‘I don’t like watching gay guys kissing, but I love watching girls kissing’.

9) An observation that a 16-year old girl who did archery with his son was good-looking.

8 The Applicant argued that each of these comments was made either to her or in her hearing, and constituted ‘unwelcome conduct of a sexual nature’ in relation to Ms Treglown, pursuant to section 22A(b) of the Act. It was not argued that any of them constituted ‘an unwelcome sexual advance, or an unwelcome request for sexual favours’ under section 22A(a).

9 Mr Riley appeared for himself. Mrs Riley appeared for the company. The cases for the Respondents were identical. They did not proceed by way of formal pleading or provide written submissions. Their cases may be summarised as follows.

1) The Tribunal would not be satisfied that Mr Riley made comments nos 2, 3, 4, 5 or 8.

2) He did make comments in similar terms to nos 1, 6, 7 and 9, but they were either not made ‘in relation to’ Ms Treglown, or were not of a sexual nature, or both.

3) The Tribunal would not be satisfied that she was offended by any remark during the complaint period because there was no convincing evidence that she made any complaint, either to her parents, other staff, or her employer, until after her employment was terminated.

4) Having regard to the circumstances of each, the Tribunal would not be satisfied that ‘a reasonable person …. would have anticipated that [Ms Treglown] would be offended, humiliated or intimidated’.

5) Generally, the Tribunal would approach the evidence of Ms Treglown with caution, because her allegations were those of a ‘vengeful ex-employee’.

10 Sexual harassment is prohibited by Part 2A of the Act. Sections 22A and 22B provided as follows.

22A Meaning of “sexual harassment”

For the purposes of this Part, a person sexually harasses another person if:


(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

11 The Applicant must prove her case on the civil standard, or balance of probabilities. A useful description of the civil standard of proof is provided by section 140 of the Evidence Act 1995, which provides:

140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:


(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

12 If the Tribunal finds that any the alleged utterances were made, and that they constituted sexual harassment, the Applicant must then prove that either Mr Riley or the company, or both, were liable in respect of it. The liability of employers and others is governed by section 22B, which relevantly provides:

22B Harassment of employees, commission agents, contract workers, partners etc

(1) It is unlawful for an employer to sexually harass:

(a) an employee, ….


(2) ….

(3) ….

(4) ….

(5) ….

(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.

(7) ….

(8) ….

(9) In this section:


….

workplace means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.

workplace participant means any of the following:

(a) an employer or employee,

(b) a commission agent or contract worker,

(c) a partner in a partnership,

(d) a person who is self-employed,

(e) a volunteer or unpaid trainee.

(10) ….

13 The liability of principals and employers is governed by section 53, which provides:

53 Liability of principals and employers

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

14 The company did not invoke the defence provided by section 53(3). Mrs Riley admitted that, though a system to prevent sexual harassment had been implemented after the complaint was made, none was in place beforehand.

15 It was alleged that the comments were made, not by the company itself, but by Mr Riley personally. To succeed against him, Ms Treglown must demonstrate that he was either her employer or a ‘workplace participant’ – that is, a fellow employee, a commission agent or contract worker, a partner in a partnership, self-employed, a volunteer or an unpaid trainee: section 22B(9).

16 To succeed against the company, Ms Treglown must show that each comment was made by Mr Riley as its agent or employee. There was no evidence that he was an employee of the company. As he was one of its directors, however, it is appropriate to infer that his actions in the workplace were done as the company’s agent, unless the contrary is shown.

17 If Mr Riley made any of the alleged utterances as the company’s agent, the company will be liable ‘unless [it] did not, either before or after the doing of the act, authorise [Mr Riley], either expressly or by implication, to do the act’: section 53(1). The onus of proving the exception lies with the company: section 104.

18 The issues for determination may be summarised as follows:

1) Whether each comment was made by Mr Riley as alleged.

2) Whether each was made within the complaint period.

3) Whether each was ‘unwelcome’. To satisfy this test, conduct must not be solicited or invited, and the complainant must regard it as undesirable or offensive: Aldridge v Booth (1988) 80 ALR 1 at 5.

4) Whether each was ‘of a sexual nature’.

5) Whether each was made ‘in relation to’ Ms Treglown. To satisfy this test, the complainant must prove that the conduct was directed towards her, or done with her in mind: Carter v Linuki Pty Limited [2005] NSWADTAP 40 [at 15].

6) What were the circumstances in which each comment was made, if at all.

7) Whether, having regard to all the circumstances, a reasonable person would have anticipated that Ms Treglown would be offended, humiliated or intimidated.

8) If Mr Riley did sexually harass Ms Treglown, whether he was her employer or a ‘workplace participant’ – that is, a fellow employee, a commission agent or contract worker, a partner in a partnership, self-employed, a volunteer or an unpaid trainee.

9) Whether each comment, if made as alleged, was made by Mr Riley ‘as the agent or employee of’ the company.

Applicant’s evidence

19 Ms Treglown gave oral and written evidence. She said that she had been employed between the dates specified above, and that Mr Riley had made each of the comments complained of, either to her or in her presence, at her place of work. She said that she had indicated her displeasure from time to time by saying, ‘that’s disgusting’, though she did not say whether she did so on each occasion.

20 She not state the date on which each comment was made, or attempt to estimate a date. In her statement, she said that each was made ‘to me during the course of my employment’. She said Mr Riley also made derogatory comments about his wife’s appearance.

21 When she commenced working at Gloria Jeans in 2006, she worked Monday to Friday, and on Sundays. On weekdays, she would open the café at 8am, taking deliveries of the food and opening the cash register, and would complete her shift at 2pm. Over time, her finishing time shifted to 1pm. From time to time, she would work on a Wednesday from 8am to 8pm, and close the café at night. During her normal weekday shift, she worked with Mr Riley, who would commence between 9 and 9.30am. She also worked with Jemma Sweetman, whose shift lasted from 10am to 2pm. Ms Sweetman, she said, did not work every day, but would fit work in around her studies. Ms Treglown felt that ‘Jemma and I got along quite fine’. Ms Treglown said that she also worked from time to time with three other staff members. On a Sunday, she also worked with Mr Riley’s son.

22 When she started work at the cafe, she was 15 years old. When she turned 16, Ms Treglown was told by Mrs Riley that she would be paid at the rate for a 17-year-old. According to Ms Treglown, Mrs Riley said words to the following effect:

‘It’s a good idea. We decided that we would reward you because you’re such a good employee and you’re good for our business.’

23 The terms of Mrs Riley’s statement, and the fact that they were communicated by her rather than her husband, tend to corroborate the Respondents’ assertion that Ms Treglown was employed, not by Mr Riley personally, but by the company.

24 When she turned 17 in March 2008, however, she did not receive a pay rise. A friend and co-worker, Jemma Sweetman, gave her a birthday card dated 8 March 2008. In it, she said, among other things: ‘I hope you have a great 17^th birthday, lots of benefits, you get your Ps – and a pay rise!’ Ms Sweetman later gave evidence (summarised below) that the two were friends, and often travelled together on the train. The Tribunal accepts that evidence. From that circumstance, and the wording of the card, it infers that the two had discussed Ms Treglown’s hopes to obtain her provisional driving licence and a pay rise on turning seventeen years of age.

25 Not only did the hoped-for pay rise not eventuate, but Ms Treglown complained that Mr Riley stopped her from working on public holidays as she had before, ‘as he would have had to pay me more money’. She said she was told that she was ‘too old’ now. In her complaint to the Board, she said:

‘It’s discriminating for him to say that Im [sic] to [sic] old to work on a public holiday but it was my roster shift[.] that made me cry because I felt to [sic] old and imbarrased [sic] and I lost money because I was to [sic] old but im [sic] not even an adult.’

26 The terms of the complaint indicate that the denial of her shifts on a public holiday caused considerable distress and resentment.

27 In her statement tendered to the Tribunal, she said that she felt she was being discriminated against, by being deprived of the opportunity to work on public holidays. The claim of age discrimination was not accepted by the Board. For that reason, it is not before the Tribunal. It is likely, however, that by 8 March 2008, the rate of pay and opportunities for work that Ms Treglown wished for were not forthcoming, and that she was disappointed.

28 In about the same month, Ms Treglown arrived at work to find a dead rat on the floor when she opened the door. The café was situated in a bookstore. There were no doors to the café, but there were doors through which people accessed the bookstore. It seems the rat was at the door to the bookstore. Ms Treglown asked a cleaner to remove the rat, and he obliged. She later informed Mr Riley. She said that he yelled, ‘How dare you get someone to fucking clean it up. You should have done it yourself or waited until I arrive[d]’. The Tribunal infers that Mr Riley’s remarks, the tone in which he said them, and the language which he used, affronted Ms Treglown.

29 At 8.15am on Friday 26 March 2008, Ms Treglown said she arrived at work as usual. As 26 March 2008 was a Wednesday, the Tribunal interprets this as a reference to Friday 28 March 2008. She picked up three boxes full of cakes and banana breads. She said the latter weighed 2 kilos each, and the boxes were heavy. She had a sore back. She picked them up to take them into the bookstore and down to the café. In her oral evidence, she gave the following version of what happened.

30 She dropped the boxes, and they fell on their side. Mr Riley walked into the shopping centre and saw her. In her oral and written evidence, she gave slightly different versions of what he then said. In her oral evidence:

‘How dare you fucking drop them. Pick them up and take them down the café. I’m going to Coles and I’ll be back’.

31 In her statement, she gave the following version.

‘Get them off their fucking side, they have cakes in there. Pick them up and take them down the back.’

32 In her oral evidence, Ms Treglown said that on Mr Riley’s return, the two had the following conversation:

Mr Riley: I always blame the fucking delivery lady. It better have been a one-off.

Ms Treglown: It was a one-off.

Mr Riley: Do you really want this job?

Ms Treglown: Don’t threaten me. No, I don’t want this job.

Mr Riley: You won’t dictate to me, little Missy.

33 She then left the café. On her way through the bookstore, she said staff there asked if she was all right. In all likelihood, she was visibly distressed. She went to a phone booth, rang her mother, and asked to be picked up. She did not return to work.

34 In her statement, Ms Treglown gave the following version of that conversation:

Mr Riley: I hope that was just a one off.

Ms Treglown: It was.

Mr Riley: I always blame the stupid delivery lady.

Ms Treglown: Well it was just a one off.

Mr Riley: Do you really want this fucking job?

Ms Treglown: I don’t.

Mr Riley: Get your fucking stuff and get out of my shop

Ms Treglown: Can I have the money you owe me?

Mr Riley: You won’t get it. You won’t dictate to me lil missy.

35 The two versions differed in the alleged occurrence and frequency of swear words, among other aspects. As will be seen, Mr Riley accepted the substance of the conversation, but denied swearing.

36 Ms Treglown said she ‘took those comments by him as that I was now sacked’. She said she ‘left in tears and extremely upset’, and that she was crying when she rang her mother and told her what had happened.

37 This event was all the more significant in Ms Treglown’s eyes because, as she told the Tribunal, she needed the money. Her father had lost the family home after contracting rheumatoid arthritis some eight years previously. She lived with her parents, and felt she had to pay board to keep the family’s finances going.

38 On 3 April 2008, which she wrote a letter addressed to Mr Riley in the following terms:

‘I Jamie-lea Treglown was an employee at your Gloria Jeans Westfield tuggerah [sic] store. I was employed for roughly 1 year and seven months[.] In that time I was employed as a casual. According to the Gloria Jeans coffee agreement that [sic] casual employees will be employed for relief purposes only. I Jamie-lea Treglown was on a set roster for 1 year and 7 months[.] I also had to give long notice for holidays, days off etc. I Jamie-lea Treglown spoke to the work place authority and [sic] due to your act as using me as a full time employee. Under the workplace authority I am classed as a casual permanet [sic]. I Jamie-lea Treglown should have received 1 week notice as this did not occur. I Jamie-lea Treglown will need to be paid accordingly 1 week notice, supper [sic] backpay, and my 2 days which I worked. The 2 week notice will be from Monday through to friday [sic] my usual shifts. My supper [sic] will be from the dates and months we didn’t know you had to and the twodays [sic] are Tues [sic] and Thursday [sic]. If I Jamie-lea Treglown don’t recieve [sic] this asap I will be contacing [sic] the workplace ombudmensen [sic] and also the unpaid wages authority. If I Jamie-lea Treglown don’t recieve [sic] this asap I will need to be and [sic] waiting time as well. You Daniel Riley also have a duty of care as you are the employer to your staff under the Ohands [sic] laws to provide with [sic] a safe workplace thats [sic] free from harrasment [sic] and bullying[.] your comments towards myself Jamie-lea Treglown and also others were unwelcome and inappropriate that I Jamie-lea Treglown made you aware of and you continued and that as such you were imbreched [sic] of equal oppurtunities [sic] legislation under the sex discrimination act. I have also notified human rights. If I Jamie-lea Treglown don’t hear within 24hrs of recieving [sic] this letter I will be taking action furthur [sic].’

39 Though the meaning of the last sentence is not entirely clear, the likely intent was a threat to complain of sex discrimination unless there was an undertaking within twenty-fours hours pay sums of the kind demanded. The letter did not specify any particular comment alleged to have constituted harassment or bullying, or which was unwelcome or inappropriate.

40 A day or two after that letter, Ms Treglown received a threatening text message on her mobile phone, not from Mr Riley, but from a fellow employee at the café. It said, among other things, ‘You’re dead’. She was understandably distressed by it and reported the matter to the police. In her complaint to the Board, she explained her belief that Mr Riley had given her private number out to employees without her authority.

41 Ms Treglown did in fact complain to the Workplace Ombudsman, as her solicitors made clear in their letter to Gloria Jeans dated 4 June 2008.

42 About a week after her dismissal, Ms Treglown was due to receive an award for outstanding customer service by the local Rotary Club. In her complaint, she described it as a ‘once in a lifetime’ award. She had been nominated for the award by Mr Riley at the invitation of local Rotarian and customer of the coffee shop, Mr Gale. However, after her dismissal, she said that Mr Gale rang her and said the award would not go ahead, because Mr Riley had told Mr Gale she ‘did not deserve it anymore [sic]’. Of this, she told the Board:

‘its [sic] harassment bullying sexual harassment and its [sic] unfair’.

43 Her mother complained to the organiser of the ceremony, and the award went ahead. Ms Treglown thought that Mr Riley had done what he could to prevent her from receiving it.

44 Ms Treglown told the Tribunal that she had been depressed while working at the coffee shop, because of Mr Riley’s treatment of her. She said that, though she did not complain to him or to Mrs Riley, she did complain to her parents, who advised her to leave. She did not leave, because she needed the money.

45 She said that, by reason of her depressed state, she did not work for two months following the termination of her employment. By the time she made her statement filed on 7 July 2009, she said she was ‘employed in a similar role but only working 6 hours per week earning about $50.00 per week’.

46 On 2 May 2008, Ms Treglown lodged her complaint of sexual harassment with the Anti-Discrimination Board. In her letter of complaint, she particularised each of the comments of Mr Riley numbered above from 1 to 8 inclusive. The third comment she described as being that he ‘should make that part of the uniform’. There was no mention of the ninth comment now relied on.

47 On 4 June 2008, Mr Treglown’s solicitors had written to Gloria Jeans that, ‘Miss Treglown has been dismissed from her employment with another employer at Westfield Tuggerah and Mr Riley’s name was mentioned in relation to that termination’. By the time of the hearing, Ms Treglown’s solicitors had been served with a statement of Mr Riley, alleging that she had commenced employment with Nuts Galore in the Westfield Shopping Centre on 17 April 2008. This directly contradicted her allegation that she was incapable of work for two months following her dismissal on 28 March. In oral evidence, she admitted that she had commenced work at Nuts Galore about two weeks after leaving Gloria Jeans, on a permanent, part-time basis. She was going to work a 36-hour week, replacing an employee who was going overseas. She said she ‘stayed there for a month because I got an allergy to the products’. She later changed this evidence to ‘about a month’, and then to ‘maybe a week or two’.

48 She admitted that it was a ‘peanut allergy’ that caused her to leave. She told the Tribunal:

‘I have encountered big hives on my arms and my arms would swell up because I was turning nuts so the air of the nuts which I had to put my arms in got onto my arm and then they would swell my arms up in hives’.

49 She also admitted that she went home one day, after being asked to scrub the floor with a toothbrush by an employee of her own age, and having an altercation with her.

50 She said that, as she can now eat peanuts, her doctor had put her symptoms down to stress. No evidence to that effect was led from her doctor. Its absence is unexplained. The Tribunal infers that it would not have assisted the Applicant: Jones v Dunkell [1959] 101 CLR 298. In cross examination, she affirmed that she left due to an allergy. In any event, there was no evidence that the nuts with which she had contact were confined to peanuts. As this was a nut store, that was most unlikely. If she had a nut allergy, the evidence does not exclude the possibility that it was caused by some other species of nut. The most likely inference is that she took leave following an altercation with a fellow employee of her own age, and received sick pay by reason of a nut allergy.

51 She told the Tribunal that she left her employment, because ‘it was best for my health’, and because ‘I encountered a situation which reminded me to much of the way I was treated at Gloria Jeans and I just couldn’t put myself through that any more’.

52 However, in their letter of 4 June 2008, her solicitors confirmed, on her instructions, that she had been dismissed from her employment at Nuts Galore. In view of that admission, her assertions that she left for other reasons cannot be true. Nor is it possible to accept as true her written statement, tendered in her evidence and confirmed on oath, that she was unable to work for two months after leaving Gloria Jeans. The Tribunal infers that her evidence in both respects was false, and that it was given in order to bolster her case against the Respondents, and to obtain a financial advantage from them. These findings adversely affect her credit. Where her evidence on other matters conflicts with that of witnesses whom the Tribunal finds to be credible, the Tribunal is not inclined to accept her evidence, at least in the absence of independent corroboration.

53 She admitted that she then obtained full-time employment at a cafe in Bonnell’s Bay. This is consistent with her 2009 tax return, which disclosed no significant difference in income from her 2008 tax return.

54 On 28 May 2008, Ms Treglown consulted her GP, Dr Hoang. By that stage, she had demanded moneys from Mr Riley, received a serious threat by telephone from someone connected with his business, been denied the ‘once in a lifetime’ customer service award at, she thought, Mr Riley’s instigation (though her mother had managed to rectify that), complained about him to the Workplace Ombudsman, and lodged a written complaint of sexual harassment and discrimination on the grounds of sex and age with the Board.

55 A statement from Dr Hoang was in evidence. He said that Mr Treglown had presented as tearful, and complained of sleeping problems, decreased concentration, and depressed feelings. She told the doctor that she was ‘stressed because of a sexual harassment case against her former employer at Gloria Jeans Coffee’. She told him her symptoms had been caused by sexual harassment while working at her previous employment. She was reviewed on 3 June, when antidepressant medication was prescribed. She was referred to a psychologist for psychotherapy and responded well. By 29 July, many of her depressive symptoms had resolved. When reviewed ten months later, on 26 May 2009, she complained again of depressed feelings, and was advised to resume antidepressant medication.

56 There is no evidence to suggest that the doctor’s observations of depressive symptoms were incorrect. However, Ms Treglown’s attribution of her condition to Mr Riley was, in the circumstances, self-serving, and consistent with a desire to provide corroboration for a complaint which was then proceeding before the Board. She did not tell the doctor of other stressors which might have given rise to her symptoms, such as the denial of a pay rise on her birthday, the denial of opportunities for holiday pay, her dismissal from Gloria Jeans and the acrimonious circumstances in which it occurred, the threat received on her phone – which distressed her so much that she reported it to police – or her dismissal from Nuts Galore and the acrimonious circumstances she encountered there. In view of that, the doctor’s views as to causation, had he expressed any, would not have been persuasive. In any event, the learned doctor was more cautious. He merely said that Ms Treglown had told him her symptoms were caused by her employment, without expressing a view himself.

57 Ms Treglown also relied on a statement from Emma Jones, a provisionally registered psychologist who had examined her on 16 June 2009 in the context of a job capacity assessment made for Work Solutions Australia. She complained of anxiety and low mood, and was counselled on eight occasions up to 1 September 2009, in order to overcome barriers to work. She presented initially with restricted affect, and low and anxious mood. Over the sessions, her symptoms improved from severe to mild. Ms Treglown attributed her symptoms to her sexual harassment ‘in her most recent employment position’. She did not name the employer. That suggests that she was then attributing her symptoms to the cafe at Bonnell’s Bay, or possibly to the actions of a subsequent employer. There is no evidence that Ms Jones was referring to Gloria Jeans. Even if she was, in the absence of any evidence that the alternative stressors referred to above were disclosed to her, any opinion on causation would have lacked probative value.

58 In her statement, Ms Treglown referred to seeing Dr Chong for counselling and being ‘booked into a mental health clinic’. No evidence was led from Dr Chong, or from the clinic. The absence of that evidence is not explained.

Evidence of Mr Riley

59 Mr Riley also gave oral and written evidence. He said that Ms Treglown was employed by Elliam Pty Limited. She was a hard worker, a valued employee, and got on well with older customers. He had nominated her for the Rotary award because he felt it was appropriate, and good for the business. He denied that he had attempted to stop her getting it after her dismissal. He had told Mr Gale that, in the circumstances, it was inappropriate for him to attend the ceremony. Mr Gale then said the award would not proceed, but changed his attitude after representations were made by Ms Treglown’s mother. Mr Riley denied having given anyone Ms Treglown’s mobile phone number.

60 Though she got on well with older customers, Mr Riley said that Ms Treglown had difficulties getting on with persons of her own age group. She favoured older customers, showing them more attention than younger ones. On one occasion, the management of McDonalds had complained to him about comments she had made, while in Gloria Jeans uniform, to their staff. She was then told not to wear the uniform outside the shop if she was entering into such disputes.

61 She also had difficulty, according to Mr Riley, in getting on with some of her fellow employees. Like her, they were teenagers or young people. She had made disparaging comments, according to him, about the sexual orientation of one or more of her colleagues, and some had cited her behaviour as the reason for their decision to leave their employment at Gloria Jeans.

62 On no occasion during her employment, said Mr Riley, did Ms Treglown complain to him about his comments or behaviour. He denied that she had ever said ‘that’s disgusting’ in response to anything said at work. Nor did he ever receive any complaints from her parents. On the occasion when Mr Riley had directed Ms Treglown not to wear uniform outside the cafe, her mother had promptly rung to complain. He submitted that, had any allegation of sexual harassment been made to her, she would in all likelihood have complained to him with equal promptness.

63 The Tribunal had occasion to observe Mr Riley giving evidence, both in chief and under skilful cross-examination. His evidence was given in a forthright manner. It was internally consistent, and not so improbable as to cast doubt on its veracity. As will be seen, he repeatedly made concessions against his own interest. Having regard to his demeanour, and to the foregoing observations, the Tribunal found him to be a witness of truth. It makes findings of fact in accordance with his evidence.

64 In particular, it finds that no complaint was made about his behaviour during the period of employment, either by Ms Treglown or her parents. The suggestion by Ms Treglown that she complained of sexual harassment to her parents is unlikely to be true. NO mention of it was made in her statement, or evidence in chief. It was offered only in response to a direct challenge in cross-examination. There is no evidence that her mother was anything but a responsible parent, concerned for the welfare of her daughter. Even at the hearing, her mother had to be asked to cease communicating with her daughter in the witness box in sign language. Had the slightest suggestion of sexual harassment been made to the mother during the period of employment, it is highly likely that she would have made her displeasure known to management – and the Board - promptly and vigorously. That did not happen. The Tribunal is not satisfied that she was told of the comments which were subsequently alleged, or of Ms Treglown’s alleged reaction to them.

65 It is convenient to consider Mr Riley’s response to each of the alleged comments below.

Evidence of Ms Sweetman

66 Ms Sweetman gave written and oral evidence in the Respondents’ case. Her statement was also tendered. Ms Sweetman said that she had been an employee at the coffee shop for about two and a half years, commencing on 27 February 2007. At the date of the hearing, she was looking for permanent employment of a different kind elsewhere, and had told her employer of that earlier in the year. She accepted that she had agreed to give evidence at Mr Riley’s request, and that he had told her how to set out the formal parts of her statement. She denied that Mr Riley had provided the content of her statement. She also denied that a refusal to give evidence would endanger her employment.

67 Ms Sweetman had been a friend of Ms Treglown even before commencing employment at the coffee shop. About twice a week, she took the train home in the company of Ms Treglown. Her parents did not allow to her to catch the train unless Ms Treglown was with her. They often talked about their lives together. Their relationship was sufficiently cordial for Ms Sweetman to give Ms Treglown a Christmas card in 2007, and a birthday card for her birthday on 8 March 2008.

68 She had also had an opportunity to observe the behaviour of Ms Treglown when working with her. Ms Treglown, she said, would commence at 8.30am and finish at 1.30pm. Mr Sweetman would commence at 10am and finish at 2pm. Mr Riley would work in the shop with the two of them. Though Ms Sweetman personally had no difficulty getting on with Ms Treglown, she said that other staff members complained about working with her. She said that Ms Treglown ‘found it hard to work in a team and take instructions from other staff members; this did lead to some tension in the workplace between Jamie-Lea and other staff members’.

69 Ms Sweetman said that she had not observed any conduct on Mr Riley’s part which could be offensive to staff. She had not observed him do or say anything which she considered offensive or harassing to her or to anyone else. She said of him:

‘Daniel Riley is a naturally upbeat and happy person and likes his workplace to display that kind of attitude to customers. I have never heard him say anything negative about a staff’s appearance or his wife’s. I have never heard him swear.’

70 Ms Treglown had never complained to her of any offensive or harassing conduct on the part of Mr Riley. Ms Sweetman said, ‘We used to talk about our lives a lot’.

71 She did, however, make the following observation:

‘Towards the end of Jamie-Lea Treglown’s employment for Daniel Riley I found it very hard to get along with her. I could see that her attitude towards work and also towards staff members had changed. She would often say things that were negative against my political views and religious beliefs for example: “Everyone who goes to church are hypocrites why would you go? Do you think you will get saved by going?” She also said negative comments about my appearance.’

72 Ms Treglown denied making any such comments.

73 A change of attitude towards fellow employees in the final months of employment is more likely to indicate a general disgruntlement with the terms of her employment – in particular, the denial of a pay rise on her 17^th birthday and of opportunities for holiday work – than to indicate that Ms Treglown had been sexually harassed by Mr Riley.

74 The Tribunal had an opportunity to observe Ms Sweetman giving evidence, both in chief and under skilful cross-examination. Her evidence was internally consistent, and she answered questions in a forthright manner. There was no evidence of any animus or other motivation on Ms Sweetman’s part which would incline her not to tell the truth about her former friend and colleague. The Tribunal formed the view that she was a witness of truth. It makes findings in accordance with her evidence.

First comment

75 Mr Riley admitted that, while working the coffee machine with Ms Treglown, he had said to a customer words to the effect, ‘We’re like a married couple’. This evidence is essentially consistent with that of Ms Treglown. He denied that any sexual connotation was intended. He said he understood it to mean that two people worked well together. He accepted that it could have the opposite meaning.

76 The Tribunal is satisfied that he said those words to a customer, in Ms Treglown’s presence, and that he knew or intended that she would overhear them. As he was referring to himself and Ms Treglown, the comments were made ‘in relation to’ her.

77 The expression, ‘to argue like a married couple’ is often used to mean that two persons are having an argument. It is possible that a person might use the expression, ‘we’re like a married couple’ in the opposite sense, to indicate a good working relationship. In either sense, it does not carry a sexual connotation. The Tribunal is not satisfied that, viewed objectively, the comment was of a sexual nature. It cannot be satisfied that a reasonable person, in the circumstances in which the comment was made, would anticipate that it would cause Ms Treglown to be offended, humiliated or intimidated.

78 In summary, the Tribunal is satisfied that the first comment was made, and that it was made ‘in relation to’ Ms Treglown. It is not satisfied, however, that Ms Treglown said ‘that’s disgusting’, or otherwise made known her displeasure. Given the view it has taken of her credit, it cannot be satisfied that the comment was considered unwelcome by her at the time. It is not satisfied that it was made within the complaint period, that it was considered ‘unwelcome’ by Ms Treglown at the time, that it was ‘of a sexual nature’, or that a reasonable person would have anticipated that Ms Treglown would be offended, humiliated or intimidated.

Second comment

79 Mr Riley denied saying, “You should hear what I say about you when you’re not here’. In view of the lack of corroboration of Ms Treglown’s version, and of the views the Tribunal has formed as to her credit, it is not satisfied that those words were said.

Third comment

80 Mr Riley dismissed this allegation, pointing out that his employees wore long trousers for safety reasons, to avoid direct contact of hot drinks on the skin. Given the absence of corroboration, and the view it has taken of Ms Treglown’s credit, the Tribunal is not satisfied these words were said.

Fourth and fifth comments

81 Mr Riley denied having made the comments about the employee, Linda, described above. He said that, after Linda was employed, other staff made comments to the effect that wearing a bikini to the interview was a good way to get a job. He admitted, ‘I went along with the joke’. He did not say how he did so. It is likely that he regarded the suggestion as humorous, and agreed with it as part of a general joke with staff. The Tribunal is not satisfied that he made the suggestion himself, or that he said the words alleged by Ms Treglown.

Sixth comment

82 Mr Riley also admitted that, on seeing a female patron bend over twenty metres from his counter, he said to himself, ‘I think I need a cold shower’. The Tribunal is satisfied that the words were said, and that they were overheard by Ms Treglown. Because it denoted sexual attraction, the comment was of a sexual nature.

83 In the absence of more precise evidence as to their date, it cannot be satisfied that they were said during the complaint period. Nor is it satisfied that Mr Riley was addressing Ms Treglown, or intended to be overheard by her. In those circumstances, it cannot be satisfied that the comment was made ‘in relation to’ her. For the reasons given in relation to the first comment, it is not satisfied that Ms Treglown indicated any displeasure, or that the words were considered unwelcome by her at the time.

Seventh comment

84 Mr Riley admitted that, on another occasion, a female patron of the bookstore came close to the café with her two children, but did not enter it. He thought to himself, and uttered aloud, ‘Fancy going home to that at night’. He did not recall whether Ms Treglown was present, but did not deny it. He denied addressing the comment to her, or intending that she overhear it.

85 The Tribunal is satisfied that the words were said, and that Ms Treglown overheard them. There is conflict in the evidence as to whether the remainder of the words alleged were said. Given the Tribunal’s findings as to Ms Treglown’s credit, it cannot be satisfied that they were said.

86 The words which were said, however, denoted sexual attraction. They were therefore of a sexual nature. As they were neither said to or about Ms Treglown, nor intended to be perceived by her, it is not satisfied that they were said ‘in relation to’ her. As no date is given or estimated for the comment beyond the assertion that it occurred during the course of employment, the Tribunal is not satisfied that it was said during the complaint period. For the reasons given in relation to the first comment, the Tribunal is not satisfied that Ms Treglown expressed any displeasure at the time, or that the words were considered by her to be unwelcome at the time.

Eighth comment

87 Mr Riley said he did not recall saying, ‘I don’t like watching gay guys kissing, but I love watching girls kissing’. He did, however, admit that in a conversation with staff during a quiet period, there was a discussion about a recent television show called “Rove” in which the subject, ‘Who would you go gay for?’ was discussed by participants. The comment does appear to have connoted attraction for the opposite sex. The Tribunal is satisfied that it was of a sexual nature. Though he did not in terms deny the utterance, the Tribunal infers that, if it occurred, it occurred in the conversation between staff that Mr Riley identified. It might or might not have been said in the terms alleged. It might have been said by Mr Riley, or by some other participant in that conversation. On the evidence, the Tribunal cannot be satisfied that it was said in those terms, or that it was said by Mr Riley.

88 Even if it was, having regard to the terms of the alleged utterance, the fact that the words were said in the context of discussing a publicly aired television show, that they were connected in an obvious way to the content of that show, and that they were by no means of an explicit nature, the Tribunal is not satisfied that a reasonable person would have anticipated offence, humiliation or intimidation on the part of Ms Treglown.

Ninth comment

89 Mr Riley admitted that a 16-year old girl had ‘taken a shine’ to his son at an archery club, and that he was proud of it. He admitted telling staff members about her, and saying that she was ‘good-looking or pretty or something like that’. That is consistent with Ms Treglown’s evidence. The Tribunal is satisfied that Mr Riley uttered words to this effect.

90 A statement that a person is good-looking, or likely to be so regarded, may or may not be a statement of a sexual nature, depending on the circumstances. In these circumstances, the Tribunal is not satisfied that it connoted any sexual attraction on the part of Mr Riley, or that it otherwise had any sexual connotation. It is not satisfied that the comment was ‘of a sexual nature’. In the absence of more precise evidence as to date, it is not satisfied that it occurred in the complaint period. For the reasons given above, it is not satisfied that Ms Treglown expressed any displeasure, or that she considered the comment unwelcome at the time. Nor, in the circumstances, can it be satisfied that it was a comment which a reasonable person would anticipate causing offence, humiliation or intimidation on the part of Ms Treglown.

Summary

91 In summary, the Tribunal is satisfied only that the comments listed above as numbers 1, 6, 7 and 9 were said, at least to the extent admitted by Mr Riley. In the absence of more precise evidence as to date, it is not satisfied that any of them was made during the complaint period. It is not satisfied that Ms Treglown expressed displeasure in relation to any of them, or that they were considered by her to be unwelcome at the time.

92 The Tribunal is not satisfied that either the first or ninth comment was of a sexual nature. It is satisfied that the sixth and seventh comments were. It is not satisfied that either of these was made ‘in relation to’ Ms Treglown.

93 For those reasons, the claim of sexual harassment fails.

Offence, humiliation and intimidation

94 It is unnecessary to consider whether a reasonable person in the circumstances would have anticipated that any of the four comments found to have been made would cause offence, humiliation or intimidation to Ms Treglown. However, it is appropriate to do so.

95 In Elliott v Nanda (2001) 111 FCR 240, the Federal Court of Australia found that certain comments made by a doctor to his female receptionist satisfied this test. By any standards, those comments were highly offensive. Though opinions might differ as to whether Mr Riley’s comments in the circumstances were distasteful, inappropriate or, as the Applicant put it, ‘sleazy’, they do not fall in the same category of seriousness as those in Elliott. On the other hand, Elliott does not establish a minimum standard for offensiveness. Comments which are less offensive might amount to sexual harassment, provided they satisfy the test laid down by section 22B.

96 That is an objective test. It requires the Tribunal to be satisfied that a reasonable person would anticipate that the comments would cause offence, humiliation or intimidation to the person concerned. The Tribunal is not required or authorised to impose its own tastes or moral standards. The comments fall to be judged by reference to the effect that a reasonable person would anticipate they would have on the complainant. The Tribunal is not satisfied that, in the circumstances of this case, a reasonable person would have anticipated that any of the comments found to have been made would have caused offence, humiliation or intimidation on the part of Ms Treglown.

Workplace participant

97 Even if sexual harassment had been established, to succeed against Mr Riley the applicant would need to show that he was her employer, or otherwise satisfied the definition of ‘workplace participant’ in section 22B(9). The Tribunal is satisfied that he was a director and shareholder of the company. There is no evidence, by way of written contract or otherwise, to establish that he was Ms Treglown’s employer. On the contrary, it seems the employer was the company. There is no evidence that Mr Riley was an employee of the company, or that he was commission agent or contract worker, a partner in a partnership, self-employed, a volunteer or an unpaid trainee. In supervising the workplace, he was fulfilling his duties as an officer of the company. To that extent, he was its agent.

98 In the circumstances, the Tribunal is not satisfied that he satisfied the definition of ‘workplace participant’.

99 Pursuant to section 108 of the Anti-Discrimination Act 1977, the complaint is dismissed.