Wearne v Dib
[2022] QIRC 454
•23 November 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Wearne v Dib [2022] QIRC 454 Wearne, Elly v Dib, Mahamad |
CASE NO: | AD/2020/53 |
PROCEEDING: | Referral of a complaint |
DELIVERED ON: | 23 November 2022 |
| HEARING DATES: MEMBER: HEARD AT: ORDERS: | 30 May to 2 June 2022 Pidgeon IC Brisbane 1. The complaint is dismissed. |
CATCHWORDS: LEGISLATION: CASES: | ANTI-DISCRIMINATION – REFERRAL OF COMPLAINT – complainant was employed by the respondent – complaint made with Queensland Human Rights Commission alleging complainant had been subject of unlawful discrimination in contravention of the Anti-Discrimination Act 1991 – complaint referred to the Queensland Industrial Relations Commission for determination – where the complainant alleges sexual harassment, indirect sex discrimination and victimisation in the course of her employment – whether the complainant was sexually harassed – whether the complainant was subject of direct and/or indirect discrimination on the basis of sex – whether the complainant was subject to victimisation – whether less favourable treatment occurred – onus not discharged – witness evidence – witness credibility – complaint dismissed Anti-Discrimination Act 1991 (Qld) ss 7, 8, 9, 10, 11, 15, 164A, 204 Briginshaw v Briginshaw (1938) 60 CLR 336 Camden v McKenzie [2007] QCA 136 Hill v Hughes [2019] FCCA 1267 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Sherry v Toyota Motor Corporation Australia Limited [2020] NSWDC 827 |
| APPEARANCES: | Mr C Van Oeveren of Supportah Ops Pty Ltd for the Complainant Mr A S McDougall of counsel instructed by Mr T Dib of Dib and Associates for the Respondent |
Reasons for Decision
Ms Elly Wearne (the Complainant) was employed on a part-time basis as a Senior Hairdresser at Michael Dib Hairdressing, a salon owned by Mr Mahamad "Michael" Dib (the Respondent) at Pacific Fair Shopping Centre, Broadbeach Waters. Ms Wearne commenced her role at the salon on or about May or April of 2019 and left the position in July 2019.
The Complainant contends that in breach of the Anti-Discrimination Act 1991 (Qld) (the AD Act), the Respondent subjected her to indirect sex discrimination, sexual harassment and victimisation during the course of her employment.
Ms Wearne first lodged her complaint with the Queensland Human Rights Commission (QHRC) on 31 December 2019, and the matter was subsequently referred to the Queensland Industrial Relations Commission (QIRC) on 8 June 2020.[1]
[1] The referral was made pursuant to the Anti-Discrimination Act 1991 (Qld) s 164A.
The Respondent denies all claims made by the Complainant.
Pursuant to s 204 of the AD Act, it is for the Complainant to prove on the balance of probabilities that the Respondent violated the provisions of the Act. The required standard of proof is met when the Complainant can successfully establish that the claim being made is more probable than not.
The standard of evidence is summarised in Briginshaw v Briginshaw as follows:[2]
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
[2] (1938) 60 CLR 336, 361-362 (Dixon J).
For the reasons which follow, I find that Ms Wearne has been unable to prove on the balance of probabilities that she suffered indirect discrimination, sexual harassment or victimisation.
The evidence before the Commission
The Commission heard from the following witnesses:
·Ms Elly Wearne, the Complainant;
·Mr Mahamad ("Michael") Dib, the Respondent;
·Mr Matthew Holmes, former employee at Michael Dib Hairdressing;
·Ms Keely Elphick, former Manager and current owner of a Michael Dib Hairdressing salon; and
·Dr Ashwani Kumar Garg, psychiatrist.
Ms Wearne's role
It is common ground that the Complainant applied for the position of Senior Hairdresser via a job seeking website and attended an interview with the Respondent shortly thereafter.[3]
[3] T 1-23, l 35 - T 1-24, l 18; Complainant's Statement of Facts and Contentions filed 11 September 2020 [10] ('Complainant's SOFC); Respondent's Statement of Facts and Contentions filed 9 October 2020 [8] ('Respondent's SOFC').
For the duration of her employment, the Complainant worked three eight-hour long shifts per week at a rate of $29.00 per hour.[4]
[4] T 2-49, ll 1-21; Complainant's SOFC [12]; Respondent's SOFC [8].
The alleged conduct of Mr Dib
The Complainant says that she was subjected to numerous instances of inappropriate behaviour and conduct by the Respondent during the course of her employment.
Ms Wearne claims that Mr Dib began subjecting her to sexualised conduct within the first few weeks of her commencing employment and that the conduct continued on an ongoing basis during the period of nine weeks Ms Wearne was employed.
It appears that at some point, there was a suggestion that the Respondent selected the Complainant for employment on the basis of a portrait photo included on her resume. Ms Wearne said that she believed her representative, Mr Heffernan, had 'implied' this suggestion to her in an interview and she agreed that the statement was true. At the hearing, Ms Wearne said that she did not believe that the reason Mr Dib hired her was the photo on her resume but that it could have been.[5]
[5] T 2-14
Mr Dib's evidence was that he came to know about Ms Wearne through an Alfaparf sales representative. Mr Dib said that he was talking to the representative about his difficulty getting staff and the representative told him about Ms Wearne. Mr Dib recalled that he met Ms Wearne on a Saturday, spoke to her for 15 minutes and he said that she could start work the following day.[6]
[6] T 3-9, ll 17-33.
General Conduct
Ms Wearne says that Mr Dib's conduct involved him directing an excessive amount of attention towards her and that he displayed more interest her compared to other employees and would frequently try to interact with her. Ms Wearne says that she noticed that Mr Dib would constantly watch her in a leering manner and that the way that he would watch her and look at her body was indicative of sexual attraction.[7]
[7] Complainant's SOFC [35]-[41].
Ms Wearne felt that Mr Dib's behaviours and conduct towards her were more 'intense and determined' than his treatment of others in the workplace, particularly the other women. The Complainant says that Mr Dib would follow her around the workplace and either attempt to interact with her or watch her. Ms Wearne felt that Mr Dib was attracted to her and this made her feel increasingly uncomfortable.[8]
[8] Ibid [42]-[44].
Mr Dib denies providing any undue attention to Ms Wearne and says that she and other staff received equal and due attention which was not excessive or unreasonable. The Respondent says that attention paid to staff was only ever for the purposes of maintaining a high standard of professionalism and a positive reputation with customers of the salon and that Ms Wearne was not treated differently to other staff.[9]
[9] Respondent's SOFC [15].
Ms Elphick said that she did not recall Mr Dib paying Ms Wearne an undue or excessive amount of attention. Ms Elphick denied having seen Mr Dib looking at anybody in a sexually aggressive manner, making sexually inappropriate comments or touching them inappropriately. Ms Elphick also denied having seen Mr Dib behave in those ways towards Ms Wearne specifically.[10]
[10] T 3-56, ll 17-44.
Remarks
Ms Wearne says that as her employment continued, Mr Dib's behaviour escalated and included making remarks to her. Ms Wearne says that this included Mr Dib making the following remarks to her: 'Don't be cheeky, I know how to play that game'; 'You don't listen to me, I want to bend you over'; and 'If I had my way, I'd just bend you over.' Ms Wearne says that when making these remarks, Mr Dib would act in a physically aggressive manner, such as positioning himself close to her or touching her.[11]
[11] Complainant's SOFC [45]-[47].
The Complainant says that on one specific occasion in or around the end of June 2019, Ms Wearne was eating yoghurt in the workplace back area when she was approached by Mr Dib who said words to the effect of 'stop eating that yoghurt, it's turning me on.'[12] Ms Wearne claims that Mr Dib said this under his breath so that only she could hear him.[13] Ms Wearne understood this to be a sexualised reference analogising yoghurt with semen. Ms Wearne said that she was disgusted by this, stopped eating the yoghurt and disposed of it. Ms Wearne says that she did not otherwise respond and tried to ignore the event. Ms Wearne could not recall if the door was closed.[14] Ms Wearne said that she recalled her colleague Zara was there that day and said:
I don't know if she heard the conversation. I think she did, because I can remember her mentioning it in the interview that we had. It was such a long time ago and I – I remember everything so clearly but it's all jumbled up.[15]
[12] T 1-50, ll 10-15.
[13] T 1-50, ll 15-18.
[14] T 1-50, ll 31-36.
[15] T 1-50, ll 19-22.
Ms Wearne says that she tried to ignore Mr Dib's sexualised behaviour as she was fearful of what may occur if she made an issue of it.[16]
[16] Complainant's SOFC [45]-[50].
The Respondent denies that any of those things were said or that the yoghurt incident occurred. The Respondent says that while staff may on occasion eat lunch quickly in the back room, staff members usually go out for lunch. The Respondent does not recall the Complainant ever eating yoghurt in the back room or at all.[17]
[17] Respondent's SOFC [17]-[18].
Ms Wearne was taken to a series of text messages between herself and Mr Dib. Ms Wearne agreed that there was no rude or lewd or sexually-oriented comments in the text messages.[18]
[18] T 2-56, ll 11-28.
Mr Dib denies making inappropriate comments towards Ms Wearne or commenting on Ms Wearne's appearance.
Physical contact
The Complainant says that Mr Dib's conduct escalated and he increased his physical contact with her, frequently touching her on the arms and shoulders and progressing to touch her on the back and waist. The Complainant says that Mr Dib would regularly introduce her to his friends and encourage her to hug them. She says that she was very uncomfortable with this but she did not want to resist or defy Mr Dib as she feared reprisal.[19]
[19] Complainant's SOFC [51]-[53].
The Complainant says that approximately two to three weeks into her employment, she was working in the back room[20] when Mr Dib grabbed and squeezed her on the backside and said 'you go girl' before walking away. Ms Wearne says that she tried to ignore and forget the incident and focus on her career progression.[21] Mr Dib denies the physical contact was made and says that if he used the term 'you go girl' it would have been in the context of appraising staff or saying 'well done'.[22] Ms Elphick gave evidence that she did not think that 'you go girl' was something Mr Dib would say.[23]
[20] A photo of the back room is Exhibit 3.
[21] Complainant's SOFC [54]-[56].
[22] T 3-8, ll 27-32.
[23] T 3-56, ll 46-47.
In her evidence-in-chief, Ms Wearne recalled the day she says Mr Dib followed her into the back room and while she was mixing a colour, spoke to her and 'smacked' her on the bottom. Ms Wearne said that he did that and then 'walked out the door like it was nothing'.
Ms Wearne recalled that after the incident where she says Mr Dib smacked her on the bottom, she 'would be touched at least once or twice a day' and that Mr Dib would touch her on the shoulder, hip or bottom.[24] Ms Wearne said that these touches would happen while she was 'just doing normal things in the salon'.[25]
[24] T 1-46, ll 40-47.
[25] T 1-47, ll 1-5.
The Respondent says that Ms Wearne's evidence about the squeeze on the bottom alleged in her statement of claim changed. The Respondent says that Ms Wearne's evidence changed from the Respondent squeezing her on the bottom on a specific occasion, to more than one occasion, to more than a couple of occasions. The Respondent points to Ms Wearne's evidence-in-chief that the alleged physical contact was a slap, the evidence given in the recording with Mr Heffernan that the contact was a pinch, and that when shown a photograph of the back room, Ms Wearne said that the contact was more of a pat.[26]
[26] Respondent closing submissions filed 25 July 2022 [16].
Ms Wearne was asked about the discrepancy between this evidence. Ms Wearne said that the touching occurred on more than one occasion and she must have mixed up the incidents.[27] Ms Wearne said that she remembered the physical contact involving touching her on the bottom but she did not remember the timeframe or the information leading up to it.[28]
[27] T 2-82 – T 2-83.
[28] T 2-86.
The Respondent notes that in cross-examination, Ms Wearne conceded that her words cannot always be relied upon because she does not 'know what words to use' and then conceded that she 'barely remembers it'.[29]
[29] T 2-84, ll 10-16; T 2-85, ll 30-34; T 2-86, ll 21-38.
Mr Holmes said that he did not recall seeing Mr Dib touching Ms Wearne, or pinching, grabbing, squeezing, slapping or patting her. Mr Holmes said that he had never seen Mr Dib do this to anyone.[30]
[30] T 3-29, ll 1-13.
The Respondent says that he does not recall touching Ms Wearne as alleged in [26] above and that he would never have sought to touch a staff member in an inappropriate way. The Respondent does not recall encouraging Ms Wearne to hug his friends or clients and is not aware of any particular incidents of this nature.[31]
[31] Respondent's SOFC [19]-[20].
The Respondent notes that when the 'hugging' allegation was discussed at the hearing, Ms Wearne said that Mr Dib never directed her to hug clients. It was more that she felt it was something she was 'implied to do' because of Mr Dib's passion about clients.[32] Ms Wearne agreed that Mr Dib did not tell her to hug his male colleagues and said that he did not push her toward them.[33] Ms Wearne said that she did not recall how that incident occurred and said that she did not remember much of it at all.[34] However, Ms Wearne said that the hugging felt uncomfortable or unnatural.[35]
[32] T 1-47 - T 1-51.
[33] T 2-101, ll 31-36.
[34] T 2-101, ll 32-33.
[35] T 2-102, l 24.
Mr Dib said that in the salon environment, there is not a lot of room and that 'you do walk past and unintentionally the staff touch you and you touch them or the client would touch you and you touch them...'.
Ms Wearne disagreed that the salon was an environment where due to the layout and presence of chairs, there was not a lot of room and that it would be difficult for someone to avoid coming into contact with another person when walking past them.
Mr Dib denied touching Ms Wearne in an inappropriate way.[36]
[36] T 3-8, l 14.
Ms Wearne confirmed that she did not raise her concerns about physical contact or physical proximity with Mr Dib. Ms Wearne said that she should have raised it but that her demeanour made it clear that she was upset after multiple incidents.[37]
[37] T 2-102, ll 37-47.
Dropping objects
The Complainant says that a few weeks into her employment, Mr Dib began deliberately dropping objects such as his sunglasses case, phone or keys on the ground near Ms Wearne and directing her to pick them up. I note that during the hearing, Mr Dib gave evidence that any reference to glasses would have been to his reading glasses rather than sunglasses as he kept his reading glasses in a case.[38] Ms Wearne says that this occurred on a daily basis and at times occurred multiple times on the same day. Ms Wearne says that while she picked the items up, Mr Dib would leer at her. Ms Wearne says that Mr Dib was not a clumsy person and that these actions were calculated and deliberate. The Complainant understood that this behaviour was for the purpose of demonstrating power and authority over her and that they were overt acts of sexual dominance. Ms Wearne says that she attempted to resist the behaviour by not engaging and trying to ignore it, however the behaviour continued.[39]
[38] T 3-18, ll 9-25; T 4-30, l 37 to T 4-31, l 7.
[39] Complainant's SOFC [57]-[66].
Ms Wearne recalled the first time she says Mr Dib dropped his glasses and asked her to pick them up. Ms Wearne said that she was standing in front of the front desk and Mr Dib was in the salon but walking out of the salon. Ms Wearne said that she thought that Mr Dib was leaving and as he was leaving, he bumped past her and the bump made him drop his glasses. Ms Wearne said that Mr Dib did not behave as though he had just been clumsy or like it was a normal situation of someone accidentally dropping something. Ms Wearne said that it was obvious to her that Mr Dib had dropped it for her to pick up. Ms Wearne said that at the time it happened, she did not think the incident felt 'extremely sexual, per se' but that it had closely followed an incident where she said she had been chastised for having her hands in her pockets and so she thought it was more about Mr Dib wanting to 'tell me what to do… have me do it'.[40]
[40] T 1-35, ll 16-32.
It was put to Ms Wearne that the incident involving her being asked to take her hands out of her pockets was not mentioned in the interview with Mr Heffernan or any of her filed material and that it was a recent invention.
However, in his evidence-in-chief, Mr Dib agreed that he had asked Ms Wearne to take her hands out of her pockets. Mr Dib recalled that when Ms Wearne came out of the salon to speak to him, he asked her to take her hands out of her pockets and relax.[41]
[41] T 3-17, l 43-46.
Ms Wearne said that the way Mr Dib looked at her when she picked up the glasses was 'up and down and stop for a – for a, like, a whole couple of seconds and had a very - like a "I liked that" look on his face.'[42]
[42] T 1-34, ll 33-37.
Ms Wearne said that Mr Dib did that about five or six times over a period of about two and a half weeks[43] and after that, she refused and walked away. Ms Wearne said that as soon as Mr Dib dropped things, she would 'just be walking away straight into anything I could possibly find to do…'.[44] Ms Wearne later said that she could not think clearly of the second time that Mr Dib dropped things for her to pick up as 'this is, like, 10 of the 12 times, yeah'.[45]
[43] T 1-35, ll 9-11.
[44] T 1-34, ll 40-43.
[45] T 1-36, ll 11-14.
Ms Wearne said that she got on well with her colleagues and that there 'were a number of times where all of them, each individually, saw Mr Dib drop his sunglasses and get me to pick them up because that was the most recurring incident'.[46] Under cross-examination, Ms Wearne said that clients would also have witnessed this occurring.
[46] T 1-36, ll 35-39.
Ms Wearne said that on one or two occasions, she recalled Mr Dib groaning in a way she considered to be sexual when she was bending down to pick up the items she said he had dropped.[47]
[47] T 1-37, ll 1-7.
The Commission heard a recording of Ms Wearne telling Mr Heffernan about objects being dropped by Mr Dib. In that recording she said to Mr Heffernan that 'Everyone would look and they'd go, here we go again'. Under cross-examination, Ms Wearne was asked who she meant when she said 'everyone'. Ms Wearne said:
I didn't mean to say at the time to – to Miles that everyone went, "Here we go." I have phrased that wrong. I should have said – and one time – one time someone made a comment, I don't recall who, "Here we go again".
The Respondent points out that when initially asked, Ms Wearne could not identify who 'everyone' was but later said that 'everyone' included Mr Holmes, Renee and Ms Thompson.
Ms Wearne said that she was certain that her colleagues Renee and Mr Holmes were present on one of the days when Mr Dib asked her to pick up his sunglasses case.[48] Ms Wearne recalled that on one occasion, Mr Holmes had witnessed Mr Dib dropping his sunglasses for her to pick up and that he had said to her in the back room, 'Well, that was effed up'.[49]
[48] T 1-39, ll 18-20.
[49] T 2-8, ll 21-25.
Mr Holmes said that he did not see Mr Dib drop items in front of Ms Wearne. Mr Holmes denied having a conversation with Ms Wearne where either of them, with reference to items being dropped, said, 'Well, that was fucked up'.[50] Further, Mr Holmes did not recall any conversation with Ms Wearne about Mr Dib dropping items.
[50] T 3-27, ll 35-47.
Ms Elphick was asked if Mr Dib had dropped things in front of Ms Wearne to pick up. Ms Elphick said that it's normal for people to drop things and referred to herself as a clumsy person. Ms Elphick also said that she was not sure if Mr Dib had dropped things because she did not see it happen.[51] Ms Elphick said that if she dropped things, Ms Wearne would pick them up and vice versa.[52]
[51] T 3-72, ll 18-30.
[52] T 3-72, l 30.
The Respondent says that the allegations regarding him deliberately dropping items and asking Ms Wearne to pick them up are untrue. Mr Dib says that to his knowledge, no complaints or grievances were ever reported by Ms Wearne to the manager or other staff of the salon. Mr Dib says that he has not received complaints or grievances from other staff in relation to the matters complained of by Ms Wearne.[53]
[53] Respondent's SOFC [22]-[23].
Ms Wearne agreed that the floor of the salon was tiled and Mr Dib would risk smashing his phone or sunglasses if he deliberately dropped them but said that the glasses were always in the case.[54] Ms Wearne's evidence was that it was 'always the sunglasses, or maybe his phone once, I think, but you know you're not going to drop your phone on purpose'.[55]
[54] T 2-91, ll 38-47.
[55] T 1-36, ll 41-44.
The Respondent says that the claim that Mr Dib would intentionally drop his sunglasses and his phone is illogical as if he dropped his glasses or his phone three or four times a day, at some time they would break.
Mr Dib denied dropping his glasses, or his phone on the floor. Mr Dib went on to say that it would be 'ruthless' to ask someone to pick up items from the floor when they have complained about having back pain or back problems.[56]
[56] T 3-18, ll 27-40.
The hair washing incident
Ms Wearne says that in or around the end of June or the start of July 2019, she was having her hair washed late one evening by a colleague, Zara Thompson, who was receiving training at the time.[57] Ms Wearne says that the chairs at the basin involve a large recliner, more akin to a bed and that the person having their hair washed is lying down and essentially 'enclosed' on the recliner. Ms Wearne says that Mr Dib saw the hair washing happening and approached both women. Ms Wearne says that Mr Dib grabbed the spray nozzle out of Ms Thompson's hand and sprayed Ms Wearne's face with water. Ms Wearne says that Mr Dib then leaned across her so she was pinned in a lying down position and said, 'I just wanted to see you wet'.[58] Ms Wearne says that Mr Dib then returned the nozzle to the basin and walked away. Ms Wearne understood Mr Dib's remark to be a reference to wanting to see her sexually aroused and wanting to engage in sexual intercourse or other sexual acts with her. Ms Wearne tried to let the incident slide and not create an issue out of it. Ms Wearne says that she was humiliated by Mr Dib's actions and felt increasingly fearful of his attempts to assert power, dominance and control over her, in particular in a sexual way.[59]
[57] Ms Elphick gave evidence that Ms Thompson worked at the salon for seven days at T 3-58, l 11.
[58] T 1-53, ll 18-35.
[59] Complainant's SOFC [67]-[71].
Ms Wearne says that she does not recall anyone else being present in the salon at the time and that it was just herself and Ms Thomson in the salon at the end of the day, 'It was just the two of us at the end of the day. Yeah, it was a dead day. Two of us at the end of a dead day.'[60]
[60] T 1-54, ll 41-44.
The Respondent denies those allegations and says that he remembers the time that Ms Wearne was having her hair washed by Ms Thompson. Mr Dib recalls that it was a training night and staff had stayed back at the salon. Mr Dib does not recall if Ms Wearne was getting her hair washed as part of the training or not. Mr Dib recalls spraying the manager of the salon in a playful manner during the training night, held after the salon had closed for the day. Mr Dib says that it is possible that the some of the water residue from the spray hit Ms Wearne while she was at the basin but that it was not deliberate nor did he say anything of the nature alleged.[61]
[61] Respondent's SOFC [24]-[25].
Ms Wearne did not recall that the incident occurred during an official training event. Her recollection was that her hair was dirty and she wanted it to be professionally washed with nice shampoo and so took advantage of using the excuse to teach the apprentice how to shampoo hair properly.[62]
[62] T 1-55, ll 1-4.
Ms Wearne's evidence was that the basins and chairs were in a 'dark private room'.[63] She later said that the basins were in a 'little enclosed area'.[64] A photo of the basins is Exhibit 4. In cross-examination, Ms Wearne agreed that the room was not dark but said that it was darker than the larger lit up space of the salon. Ms Wearne also said that the room was a more private area of the salon but agreed that the there is no door on the area and the doorway to that area is at least 1.5 metres wide.
[63] T 1-27, ll 1-4.
[64] T 1-54, ll 3-5.
Issues in the workplace and the end of employment
The Complainant says that by July 2019, she was becoming increasingly resentful and despondent towards Mr Dib as a result of his ongoing conduct and that she reached breaking point as a result of the continuous sexualised conduct directed at her by Mr Dib.[65]
[65] Complainant's SOFC [72].
Ms Wearne's cigarette breaks and asking the apprentice for a meat pie
The Commission heard evidence that there was an occasion when there was an issue in the workplace involving Ms Wearne taking cigarette breaks.
Ms Wearne was told that Mr Holmes' evidence would be that about two weeks before Ms Wearne resigned from her employment, she had taken about six cigarette breaks in the morning and that this was not unusual. Ms Wearne said that was 'plain and downright false'. Ms Wearne was told that Mr Holmes would say that on that particular day when Ms Wearne had taken six cigarette breaks, she had also sent the apprentice out to buy her a meat pie. Ms Wearne did not recall a conversation or argument with Mr Holmes where he said, 'We are too busy to send the apprentice out for a meat pie' and where following the conversation she 'broke down into tears and left the client in a chair with wet hair'. Ms Wearne said that such a conversation 'definitely didn't happen'. However, Ms Wearne also recalled sending the apprentices out to get 'her and themselves lunch' and that 'it could have been a pie one day'.
Ms Elphick also recalled a day when Ms Wearne took 'between six and eight' smoke breaks asked if an apprentice could go out to get her a pie.
Mr Holmes says Ms Wearne 'Googled' Mr Dib
Mr Holmes recalled that he occasionally caught the tram with Ms Wearne and that on one occasion, Ms Wearne told Mr Holmes that she had 'Googled Michael before, and what his net worth was…'. Mr Holmes said that he found it odd as he does not 'Google these things' about his bosses and that he spoke to Ms Elphick about it afterwards.
Ms Wearne agreed that she used to catch the tram with Mr Holmes and that he got off the tram a few stops before Ms Wearne's stop. Ms Wearne was told that it was going to be Mr Holmes' evidence that that he was on the tram with Ms Wearne one day and that she told Mr Holmes that she had 'Googled' Mr Dib. Ms Wearne recalled that conversation and agreed that she had 'Googled' Mr Dib. Ms Wearne was asked if she recalled complaining that she did not get paid enough and Ms Wearne denied doing so and said that she never had a problem with her pay rate. Ms Wearne recalled complaining to Mr Holmes about the 'ridiculousness of the extreme expectations of those KPIs' but said that she was not complaining to Mr Dib about not reaching them.
Mr Holmes denied gossiping with Ms Wearne about grievances he may have with Mr Dib. When taken to a Facebook Messenger exchange he had with Ms Wearne complaining that he had not been paid, Mr Holmes said that he was using 'rough' language but that it was not intended to be nasty, and that he would have spoken to Mr Dib and asked why he had not been paid. Mr Holmes said that while he had given evidence to the Commission that he did not have complaints about his pay, it was the case that he had an issue when there was a new bookkeeper, but that he did not have complaints about the amount he was being paid or what he was taking home.
Re-booking clients
The Complainant says that on 8 July 2019, she and Mr Dib had an argument about rebooking clients. Ms Wearne says that Mr Dib told her that she had to rebook clients for future appointments regardless of whether the client asked for another appointment and that she had disagreed. Ms Wearne says that during the argument, Mr Dib said words to the effect of 'well if you don't like it, then I'd hate to see you leave' and 'go home and think about it' which Ms Wearne took as Mr Dib stating that she needed to agree with him or leave the workplace. Ms Wearne says that she opted to leave and went to the back of the workplace to collect her belongings. Ms Wearne says that Mr Dib followed her to the back of the workplace and said, 'give me a kiss on the cheek and we'll forget about it'.[66]
[66] T 1-56, ll 19-41.
Ms Wearne recalled that following that interaction she:
… totally lost my bearings, and he walked away and I walked straight to my trolley and I grabbed all of my stuff and I left. And on my way back, I sent him a message[67] saying that I'd quit – that I'd left, to let him know I'm done and I did not want to be a part of what – of his clown business of controlled hairdressers in the workplace – or controlled women is what it felt like…[68]
[67] An exchange of text messages is Exhibit 5.
[68] T 1-56, ll 41-45.
The message Ms Wearne sent was provided to the Commission and it said, 'This isn't working for me MD. Best of luck with your salon but I'm sorry, im not going to be apart of it' [sic].'[69]
[69] Exhibit 5.
Ms Wearne says that she viewed this as another sexualised act of control and dominance and that she left the workplace permanently because of the treatment by Mr Dib. Ms Wearne says that she had no further contact with the workplace after walking out.[70]
[70] Complainant's SOFC [73]-[76].
The Respondent recalls a discussion about rebooking clients on or about 3 July 2019. He does not recall it was an argument, but a constructive discussion held outside the salon. Mr Dib says that he asked Ms Wearne to ensure that clients rebook for future appointments and that Ms Wearne had said that she did not like asking clients to rebook. Mr Dib said that he advised Ms Wearne that rebooking clients is an essential part of the business of the salon and that it is referred to in the Code of Conduct.[71] Mr Dib agrees that he said words to the effect that it was the salon policy to rebook clients and that if she did not like that, he would hate to see her go as all staff were expected to abide by the policy.[72] Ms Wearne agreed that Mr Dib had said to her that the practice of rebooking clients was a policy of the salon. Ms Wearne did not recall Mr Dib telling her that by not complying with the policy she was doing the wrong thing but did recall telling him that she did not agree with the policy. Ms Wearne recalled that the conversation concluded with Mr Dib telling her that if she did not agree with the rebooking policy, that this may not be the salon for her and that she then left to attend to her client.[73] Ms Wearne said that the conversation did not end with her leaving the employment but that that happened later in the day.[74]
[71] Exhibit 2.
[72] Respondent's SOFC [27].
[73] T 2-110, ll 10-27.
[74] T 2-110, ll 34-46.
Ms Wearne denied that she had had a conversation with Ms Elphick in which she bluntly refused to deal with advance bookings for clients. Ms Wearne agreed that on her last day of work, she had discussed advanced bookings with clients with Mr Dib and that she had told Mr Dib that she did not agree with the rebooking percentage rate policy.[75] Ms Elphick's evidence was that Ms Wearne was not meeting her KPIs.[76]
[75] T 2-109, l 44 – T2-110, l 8.
[76] T 3-73, ll 1-11.
Under cross-examination, Ms Wearne recalled that when Mr Dib approached her and asked her to give him a kiss on the cheek and he would forget about their argument, he was accompanied by two businessmen who were within hearing distance of the conversation. Ms Wearne said that she had not mentioned the presence of the businessmen before but that she 'just thought to put the extra detail in'. It was put to Ms Wearne that she had withheld this information until the hearing and that Mr Dib had not had an opportunity to call the men to give evidence. Ms Wearne appeared to say that she had not intentionally left out that detail from her evidence but also that she did not want to give Mr Dib an opportunity to deny what happened.[77]
[77] T 2-111.
Mr Dib says that staff keep their possessions under the front desk or on their trolleys and so he is unsure why Ms Wearne would have returned to the back room to collect her belongings. Mr Dib denies telling Ms Wearne that if she kissed him on the cheek, they could forget about their argument and says that the allegation is untrue.[78]
[78] Respondent's SOFC [27]; T 3-11, l 31-32.
Ms Wearne says that she went straight to the police station to report what had happened to her and that when she started to tell the police officer about what happened he said, 'Hang on, whoa, whoa, whoa, wait? So this happened at work?' and that when Ms Wearne said that she had just come from work and had just quit, the police officer said, 'I'm so sorry, but you have to file this through Fair Work. I can't report this as a police statement. You have to file it through Fair Work.'[79]
[79] T 1-59, ll 15-22.
Ms Wearne was asked about the report she made to police. Ms Wearne could not recall who she spoke to but recalled it was a male police officer.[80] Ms Wearne was asked if she received a 'street check' number recording her visit and report and Ms Wearne said that she did not know that she was supposed to receive such a number.[81]
[80] T 2-104, l 40.
[81] T 2-105, ll 10-11.
Ms Wearne's back injury
Ms Wearne agreed that she has a back injury and that she cannot sit or stand for long periods of time. Ms Wearne agreed that she did not tell Dr Garg about her back injury and said that she did not think it was relevant to her case. Ms Wearne recalled going home once or twice for her back and that one time was in a wheelchair because she could not raise her leg or her hip. Ms Wearne said that the injury affected her ability to work. Ms Wearne agreed that following the incident where she had to leave work in a wheelchair, Mr Dib had been in contact with her via text message and that the text messages were of a friendly and cordial nature.[82]
[82] T 2-57 - T 2-59.
Post-employment impact on Ms Wearne
Ms Wearne said that in the weeks following the end of her employment at the salon, she did not want to be a hairdresser anymore. Ms Wearne said that she thought:
… if this is the funny games and nasty business of clients rebooking rates and being on a stage and dealing with men that are going to be completely unacceptable towards me, then I'm out…[83]
[83] T 1-62, l 46- T 1-63, l 1.
Ms Wearne says that she was significantly distressed by her treatment from Mr Dib and was fearful that remaining in the hairdressing industry may result in similar events occurring again and cause constant memories of what occurred. Ms Wearne says that despite this, she had no choice but to find a new job due to her financial obligations.[84]
[84] Complainant's SOFC [77]-[79].
Ms Wearne says that on or around 15 July 2019, she started a new job with Se Jong Park T/A The Buz. Ms Wearne says that she worked at The Buz from around 15 July 2019 until around 12 April 2020. Ms Wearne says that her employment came to an end due to a downturn from COVID-19.[85]
[85] Ibid [80]-[81].
Ms Wearne then worked for a woman named Sharon in a barber shop in Chevron Island. Ms Wearne worked there from around July or August 2020 until January 2021, the month before she had her daughter.[86]
[86] T 1-64, l 34 - T1-65, l 12.
Ms Wearne says that during her period of unemployment since April 2020, she had determined that she wished to withdraw entirely from her career path in hairdressing because of her treatment by Mr Dib and to put the events behind her.
Ms Wearne says that she has invested a collective nine years (including four years of training and five years of working) into her career as a hairdresser. Ms Wearne is now seeking to transfer career paths to nursing. Ms Wearne says that she has tried to find new roles but has been impeded by her poor psychological state brought on from her experiences of working with Mr Dib.[87]
[87] Complainant's SOFC [82]-[85].
The Respondent says that matters regarding post-employment are not within its knowledge. The Respondent understands that Ms Wearne suffers from a pre-existing medical condition or injury which existed prior to her commencing employment with the Respondent. The Respondent says that Ms Wearne was often rendered unable to continually stand during her shift at the salon; she would frequently take time off work or leave early due to back pain and that on one occasion, she left the salon in a wheelchair due to back pain.[88]
[88] Respondent's SOFC [28]-[29].
The report of Dr Garg
Ms Wearne was taken to the contents of a report of an evaluation undertaken by Dr Ashwani Garg for the purposes of the hearing. Ms Wearne was asked if there were any particular parts of the report that she wanted to draw to the Commission's attention. Ms Wearne spoke about an event that happened when she was aged 13 or 14 where she says that she was drugged and raped by two men, one of whom was known to her, and that she woke up tied to a tree and that the police found her and returned her to her school. Ms Wearne said that her experience working with Mr Dib in the salon reminded her of those events. Ms Wearne said that she was not saying that Mr Dib did the same things to her as in that event but that the events and experiences in the workplace made her feel the same way that she felt that night.[89]
[89] T 1-68, ll 17-32.
Ms Wearne was cross-examined regarding the evidence she had given the Commission that she had been drugged and raped. Ms Wearne agreed that she had told Dr Garg that she had been tied to a tree but she said that the memory is blurred and she recalls seeing rope but that she was not 100 per cent sure if she was tied to the tree or lying against the tree. Ms Wearne agreed that she had told Dr Garg that police found her soon after the abduction and that the police had caught the perpetrators later. Ms Wearne said that one of the perpetrators went to prison but that she did not recall his name. There was an ongoing exchange between the Respondent's representative and Ms Wearne, the essence of which was that Ms Wearne had fabricated the story regarding the rape and abduction, that the police report did not support the version of events shared with Dr Garg and that Ms Wearne had lied to the police and her parents regarding what had occurred on that night. Ms Wearne's evidence was that she had given a second statement shortly after the first statement. Ms Wearne said that she was not present for the trial of the person she said had raped her and that she could not recall for how long he had gone to jail.
Ms Wearne questioned the relevance of the line of questioning and the Respondent's representative told her that the relevance was that she had told Dr Garg about these events and on the basis of that, Dr Garg had found that the alleged conduct of Mr Dib 'has led to some new trauma related anxiety symptoms and the recurrence of some symptoms of PTSD'.[90]
[90] T 2-64 - T 2-65.
Ms Wearne agreed that she lied to the police on another occasion referred to as the 'Ballina car park incident'. Ms Wearne also agreed that she had lied to police about taking an overdose.[91]
[91] T 2-65.
Ms Wearne agreed that she had told Dr Garg that she had attended upon a number of counsellors after the 2011 incident but that she had no idea who they were and that it was many years ago. Ms Wearne said that she did not make a 'Victims of Crime' compensation claim.
Ms Wearne was taken to a line of Dr Garg's report which said, 'She also could not work in salons where males are employers'.[92] Ms Wearne said that she could not recall saying that she could not work in a workplace where there are males but that 'It's more I am more wary of if there are males in my workplace now, or anywhere in general.[93] Ms Wearne said that other than that part of the report, 'Everything is exactly how it is.'[94]
[92] T 1-69.
[93] T 1-69, ll 33-37.
[94] T 1-69, ll 41-44.
Ms Wearne was asked about her remark to Dr Garg that she cannot work in a salon and that she was only able to work because she was working with a woman. Ms Wearne agreed that that was what she said and recalled that the woman she was working for at that time was Sharon from Murphy & Co Barber Shop.[95] However, Ms Wearne agreed that approximately 12 days after she left working for Mr Dib, she commenced work for a male in a barbershop. Ms Wearne agreed that she did not tell Dr Garg this and said that she 'can see how it looks'.[96] Ms Wearne also agreed that she did not tell Dr Garg that the barber shop was a place where men predominantly get their hair cut.[97]
[95] T 2-25, ll 30-47.
[96] T 2-27, ll 40-47.
[97] T 2-28, ll 1-2.
Ms Wearne was taken to the section of Dr Garg's report which stated, 'Ms Wearne said that she could not return to salon work due to her anxiety symptoms. However, she is able to work as a barber, which is a simple job. She also could not work in salons where males are employers. She had to find a salon where a female was an employer. Ms Wearne was asked if she agreed that was false and she said that she believed that Dr Garg had reworded her own words and said that there were 'a lot of sentences throughout this entire paperwork that have been rephrased into his own words'. Ms Wearne was asked why she did not seek to provide any other clarifications of Dr Garg's report and she said that she did not believe the worded sections were 'completely incorrect' and said that they 'cover the basis of what I've said'.
Ms Wearne was taken to the part of Dr Garg's report which said, 'her concentration is not as good as it used to be. She struggles to multi-task'. Ms Wearne was asked if cannabis affects concentration and she agreed that it does. Ms Wearne said that she has been using cannabis for about six years. Ms Wearne said that during her employment with Mr Dib, she started smoking more and more as the incidents progressed. Ms Wearne said that prior to working for Mr Dib, she would use cannabis every second or third weekend but that after working for Mr Dib, she was smoking sometimes, once a day throughout the week or five times a week out of seven days. Ms Wearne said that her use varied depending on how she was feeling or the things that she had on.[98] Ms Wearne said that at the time she spoke to Dr Garg, she was using cannabis between three and five times a week. Dr Garg's report said that Ms Wearne was smoking 'one marijuana joint every two to three days'. Ms Wearne was taken to the part of Dr Garg's report where Dr Garg recorded that Ms Wearne had said that she 'used to smoke a few joints every day'. Ms Wearne said that this had been misheard by Dr Garg.[99]
[98] T 2-37 - T 2-38.
[99] T 2-38 - T 2-39.
Ms Wearne was asked if she was smoking cannabis each day because she was bored. Ms Wearne said that she was smoking cannabis and that the was 'zombifying herself' and that she did not want to think or talk about it.[100]
[100] T 2-14, ll 1-8.
Dr Garg's report also recorded that Ms Wearne smoked 20 to 30 cigarettes per day. When asked if that meant that she was smoking 20 to 30 cigarettes a day at the time of the interview when she was approximately seven and a half months pregnant, Ms Wearne said that Dr Garg had not recorded that accurately. Ms Wearne agreed that when she worked for Mr Dib, she was a smoker and would take two or three cigarette breaks per day although she was smoking 20 to 30 cigarettes a day.[101]
[101] T 2-40 – T 2-41.
At the conclusion of Ms Wearne's evidence, I clarified something I had heard her say in her evidence-in-chief on day one. Ms Wearne is currently working in a salon which is run by the man who trained her, Marcus, who she said reminded her in some ways of Mr Dib and dresses 'quite similar' to Mr Dib.[102]
[102] T 2-120, l 35 – T 2-121, l 21; T 1-29, ll 7-8.
Ms Wearne told the Commission about the 'extraordinary'[103]impact that the alleged incidents had on her. Ms Wearne said:
… it's gone from – from mental health to…money, to my relationship with my partner, to my relationship with…my parents, to my personality change, to my anger, to …ongoing things I have developed and started doing since to cope, since the incidents. It's still ongoing. I'm still….doing things to – to cope with my stress, and I'm still – I'm still – I still have anxiety. I still – I still have to see – see people about – and talk to people about my thoughts and, yeah. There – there is too much damage to have – not do anything about this.[104]
[103] T 2-10, ll 5-6.
[104] T 2-10, ll 4-13.
Ms Wearne was asked about the part of Dr Garg's report where it was recorded that Ms Wearne had said her relationship with her fiancée had been affected due to a change in her attitude and that she had become very irritable. Ms Wearne accepted that there is scientific literature on the links between extended cannabis use and irritability and anxiety. Ms Wearne confirmed that her partner was not interviewed and did not provide any information to Dr Garg.[105]
[105] T 2-98, ll 1-15.
During cross-examination, Ms Wearne was asked about her earlier evidence at [98] that she requires ongoing treatment. The Complainant was asked where this evidence could be corroborated in her material for the hearing. Ms Wearne said, 'It's not because it hasn't happened yet because it's still – still manifesting.'[106] Ms Wearne was asked if it was the case that she had not been getting any medical attention at all. Ms Wearne said that she spoke to her General Practitioner (GP) about the matter but that she has not seen that GP for a long time. Ms Wearne was asked why she did not get a copy of the medical records of her GP and she said that while she did not know with one hundred percent certainty, she did not think he documented any of the things she said. Ms Wearne said that she only saw the doctor for one or two short appointments and that those appointments were originally for other matters.[107]
[106] T 2-11, ll 34-38.
[107] T 2-12, l 29 - T2-13, l 4.
Ms Wearne was asked about the psychiatrist she said she had been to see and recalled that she only saw them once, that they were female and were in the suburb of Chirn Park. Ms Wearne said that her doctor set her up on a mental health plan and agreed that this included ten free appointments but that she only attended once. Ms Wearne said that she 'had a lot of other things on her plate' and that she was 'very busy' and 'wasn't ready to talk to anyone yet'.[108]
[108] T 2-13, ll 13-41.
Ms Wearne was taken to a section of Dr Garg's report which stated that Ms Wearne had reported that she 'did not report any problems driving a car but she feels very anxious in public places like shopping centres'.[109] Ms Wearne was asked if she told Dr Garg that she worked in a shopping centre. Ms Wearne denied that the barbershop was in a shopping centre and said that it was a 'boulevard with shops' and that 'it's not a shopping centre where it's an enclosed building'.[110] Ms Wearne agreed that she walks her dog along the boulevard at Broadbeach and that this is a public place where there are a lot of people. Ms Wearne also agreed that she had described the place she worked at the Buz Barber Shop as having a lot of foot traffic.[111]
[109] T 2-94, ll 22-23.
[110] T 2-94, l 25 – T2-95, l 1.
[111] T 2-97, l 42 – T2-97, l 10.
Dr Garg said that the only documents he had access to in forming his opinion were the Statement of Facts and Contentions and the Letter of Instruction which asked him to answer particular questions. Dr Garg confirmed that he did not have access to any of Ms Wearne's medical history from the GP or previous counsellors. Dr Garg also stated that he did not seek to test any the veracity of anything Ms Wearne said about what had happened.[112]
[112] T 3-82, ll 39-46.
Dr Garg said that he did not ask Ms Wearne if she had been previously diagnosed by a psychiatrist.
With regard to whether Ms Wearne could return to work as a hairdresser in a salon, Dr Garg said that Ms Wearne had told him that she was able to work as a barber and that she could not work in salons where males are employers. Dr Garg agreed that the report goes on to say, 'she had to find a salon where a female was an employer'. Dr Garg was asked if his opinion would change if he knew that nine or ten days after working at Mr Dib's salon, she was working for a male employer. Dr Garg said that he would need to interview Ms Wearne on that again. Dr Garg said that just because Ms Wearne was working for a male, it did not mean that she is not having distress. Dr Garg said that he would need to further examine Ms Wearne before he could form an opinion. Dr Garg agreed that he had not written notes about whether Ms Wearne had told him she was working for a male and said that he 'should have asked her about it' and he 'failed to assess her on that question'.[113]
[113] T 3-84.
Later, Dr Garg confirmed that the impression Ms Wearne gave him was that she could not work with a male in a salon and agreed that it would change his assessment if he knew that she actually had.[114]
[114] T 3-85, ll 21-26.
With regard to Dr Garg's report stating that Ms Wearne had become very anxious in public places like shopping centres, Dr Garg said that Ms Wearne did not speak to him about working on a shopping boulevard after leaving her job with Mr Dib. Dr Garg said that he was not told by Ms Wearne that she worked in a very busy public place but agreed that his report stated, 'Ms Wearne said that she avoids going out, especially to shopping centres as she becomes particularly anxious there'.[115]
[115] T 3-88.
Dr Garg agreed that Ms Wearne told him that she was experiencing difficulties with her partner and that 'every time her partner touches her she develops anxiety' and that she is 'unable to have a sexual relationship with her partner' and 'the only time she feels comfortable is when she is alone'.[116] Dr Garg agreed that he did not speak to Ms Wearne's partner or have any material from him.
[116] T 3-89.
Dr Garg said that he did not believe that his diagnosis would change in the event that the past incident where Ms Wearne says she was sexually assaulted did not occur.[117] It appears to be Dr Garg's evidence that Ms Wearne did not have any impairment until the incidents she describes as happening at Mr Dib's salon occurred and that 'she would not have developed this current condition if the second incident (the salon allegations) would not have occurred'.[118]
[117] T 3-90.
[118] T 3-93, ll 20-25.
Alleged victimisation through cease and desist letter
The Complainant says that on 17 August 2020 shortly prior to a listed conference before the Commission, the Respondent issued her with a cease and desist letter predicated on the allegations she had raised.[119]
[119] Exhibit 6.
Ms Wearne was shown the letter that she had been sent and said:
I believe this was the document that I was emailed not long after my claim. And it is – excuse me for my poor English – defamation, I believe that Mr Dib is accusing me of lying, is that the basis of the document? I didn't understand any of it when I first received it. I had to ask my father what it meant. And ---.[120]
[120] T 1-59, ll 39-45.
Ms Wearne said that she understood the purpose of the letter to be 'an instant scare tactic' or 'instant denial'. With regard to the claim in the letter that Ms Wearne had discussed the alleged conduct of Mr Dib with 'other members of the community', Ms Wearne said that at that date, she had only discussed the matter with her parents, her partner and Ms Zara Thomson.[121] Ms Wearne said that she knew that if she spoke to Mr Dib or anyone in relation to him 'that would extremely affect my claim, so I didn't do that ever'.[122] Ms Wearne said that she spoke to her parents for the purpose of understanding the processes and the wording and to her partner for emotional support.[123] Ms Wearne said that she spoke to Ms Thomson 'only for the purposes of her being able to be my witness'.[124]
[121] T 1-60, ll 10-29.
[122] T 1-60, ll 27-29.
[123] T 1-60, ll 31-42.
[124] T 1-61, ll 1-3.
Ms Wearne read aloud a part of the letter which said that Mr Dib's lawyers had instructions to seek that she pay for Mr Dib's legal costs following dissemination of the defamatory material, including the costs of preparing the letter, the cost of any deed of settlement to be prepared and the costs of any advice from counsel.[125] The letter also asked that she pay Mr Dib damages to compensate him for the damage to his reputation and consequent financial loss arising from the publication.[126]
[125] T 1-61, ll 10-20.
[126] T 1-61, ll 28-32.
Ms Wearne said that she did not initially read the document or pay any attention to it because she thought it would make her upset and that she was being 'messed with and tested'.[127] Ms Wearne said that she was surprised to be hearing from Mr Dib as she believed that once she had made the claim, neither side could contact the other.[128]
[127] T 1-61, ll 38-40.
[128] T 1-61, ll 44-47.
Ms Wearne said that until the hearing, she had not read the letter in its entirety. [129] Ms Wearne said that when the content of the letter was roughly explained to her, she was 'very shocked and confused as to how that these smart little people can twist everything like this and create such a defence mechanism'.[130] Ms Wearne said that the letter gave her confidence afterwards and that it showed that Mr Dib was 'proving himself guilty straightaway'.[131]
[129] T 1-62, ll 5-7.
[130] T 1-62, ll 30-32
[131] T 1-62, ll 23-34.
Ms Wearne was asked if she had spoken with Ms Zara Thompson prior to the interview with Mr Heffernan. Ms Wearne said that she told Ms Thompson the nature of the complaint and what would be discussed but said that she did not tell her what to say.[132] Ms Wearne later said that she had said to Ms Thompson, 'I need you to come and be my witness for a series of things that happened during working for Mr Dib'.[133] Ms Wearne said that she 'told her that a few of the incidents that we were going to – that I … wanted to raise…'.[134]
[132] T 2-87.
[133] T 2-89, ll 32-34.
[134] T 2-89, ll 41-46.
Ms Wearne did not recall if Mr Heffernan had told her that he had spoken to Mr Dib or knew of him.[135]
[135] T 2-87, ll 17-27.
Ms Wearne agreed that just prior to making her complaint and causing notice to be served on Mr Dib, she spoke to a number of people about her allegations against Mr Dib. Ms Wearne agreed that she had spoken to her father but denied telling Mr Holmes about the allegations.
Ms Wearne was asked how she could have been victimised by the letter if she did not read it. Ms Wearne said that she did not understand the nature of the question. Ms Wearne then agreed that her evidence had been that she did not worry about the letter and that her father gave her a slight bit of encouragement that she had a strong case.
Mr Dib was asked what led him to seek that the letter be sent to Ms Wearne. Mr Dib said that he had been told that he was being taken to court for $280,000 for sexual harassment. Mr Dib said that he would not sexually harass someone and that he was 'pretty devastated that someone – someone could try to tarnish my reputation…'.[136]
[136] T 3-16, l 24 – T 3-17, l4.
Ms Wearne's representative put it to Mr Dib that he had collaborated with witnesses Elphick and Holmes to support his case. Mr Dib denied this. Mr Dib was shown a number of prepared statements[137] signed by various past employees and was asked about whether he had turned to people he had good relationships with to ask for their help. Mr Dib said that he did not do that but that he asked his lawyer to get the statements signed. It was put to Mr Dib that the purpose of the statements was to attempt to scare Ms Wearne into not proceeding with her matter. Mr Dib disagreed.
[137] Exhibit 22A - 22D.
It was further put to Mr Dib that he had sought to delay the matter coming to hearing in order to discourage Ms Wearne from proceeding with the matter. Mr Dib disagreed.
Mr Dib was taken to the cease and desist letter he had caused to be sent to Ms Wearne.[138] Mr Dib was asked if the letter was sent with the purpose of encouraging Ms Wearne to discontinue her matter. Mr Dib disagreed and said:
… the letter was sent because people come to me – a couple of people come to me and said you've been accused of sexual harassment, and I've [indistinct] that to protect my honour and reputation by sending the letter.[139]
[138] Exhibit 6.
[139] T 4-9, ll 37-40.
It was put to Mr Dib that he had not heard rumours of discussion of his alleged conduct within the community. Mr Dib disagreed. It was put to Mr Dib that if there were rumours with regard to his conduct, it could be that they arose from his own actions in seeking statements from previous employees. Mr Dib also disagreed with this proposition.[140] It was put to Mr Dib that by requesting, via the letter, that Ms Wearne pay his legal costs and compensate him for damage he has received, that he was 'trying to punish Ms Wearne for progressing these proceedings'. Mr Dib disagreed and said that he was protecting his reputation.[141]
[140] T 4-10.
[141] T 4-10 - T 4-11.
Closing submissions
Complainant's contentions
In its closing submissions, the Complainant contends that the Respondent's conduct was unsolicited and unwelcome because the conduct was not invited by the Complainant and occurred in circumstances where a reasonable person would have anticipated the possibility that the Complainant would be offended, humiliated or intimidated.[142]
[142] Complainant's closing submissions filed 11 July 2022 [17] ('Complainant's closing submissions').
The Complainant emphasises a power differential between Ms Wearne and Mr Dib. To demonstrate this argument, the Complainant submits the following via its Statement of Facts and Contentions and closing submissions:
·During Ms Wearne's employment, she was 21 years of age and Mr Dib was 63 years of age.[143]
[143] Ibid.
·Ms Wearne reported directly to Mr Dib. The Respondent held himself with authority and Ms Wearne saw him as a powerful person.[144]
[144] Complainant's SOFC [14], [16].
·Mr Dib is an 'astute businessman' and a well-known figure within the Gold Coast community and hairdressing community.[145] He is both 'charismatic' and 'well connected'.[146]
[145] Complainant's closing submissions [17].
[146] Complainant's SOFC [22].
·By comparison, at the time of her employment at the Respondent's salon, Ms Wearne was an early-career hairdresser with high aspirations to excel in the industry.[147] Her long-term goal was to open her own salon.[148]
[147] Complainant's closing submissions [17].
[148] Complainant's SOFC [33].
·Ms Wearne was proud to work for the Respondent's business given its reputation as a well-known and high-end salon on the Gold Coast.[149]
[149] Ibid [24].
·The role was Ms Wearne's first 'big break', she received 'an excellent pay rate' which she understood to be higher than that of her colleagues,[150] and the Respondent promised to provide her with opportunities.[151] One such opportunity was for the Complainant to be involved in opening another salon in Robina which the Complainant could run.[152]
[150] Ibid [31].
[151] Complainant's closing submissions [17].
[152] Complainant's SOFC [14]; T 1-27, l 31 - T 1-28, l 26.
·Ms Wearne understood appearance to be very important to Mr Dib.[153] Ms Wearne says that a portrait photo of herself was included on her application and she came to feel that she was hired for her appearance and Mr Dib's attraction to her.[154]
[153] Complainant's SOFC [21].
[154] Complainant's SOFC [15]; A version of Ms Wearne's resume was tendered as an exhibit, however it is unknown if this document was ever considered by Mr Dib (T 1-24, ll 12-18); Exhibit 1.
·Ms Wearne did not want to upset the Respondent as her employment depended upon his discretion and she felt indebted to him for the opportunities he provided.[155]
[155] Complainant's SOFC [30]; Complainant's closing submissions [17].
·The Respondent's nature was 'largely overbearing and controlling'.[156] He held high expectations regarding the performance of his staff and placed pressure on employees to positively reflect his brand.[157]
[156] Complainant's closing submissions [17].
[157] Complainant's SOFC [14], [23].
·The Respondent publicly berated and derided staff members in the middle of the workplace floor for making an error, and Ms Wearne was fearful of being subjected to this treatment.[158]
[158] Ibid [27]-[28].
·Mr Dib used a particularly personal approach to guide and mentor the Complainant.[159] The Respondent gave Ms Wearne positive feedback, which made her feel confident and positive in her performance.[160]
[159] Ibid [26].
[160] Ibid [32].
·Given the above, Ms Wearne developed a 'growing mix of emotions working with Mr Dib'.[161] She formed a view that resisting Mr Dib would cause significant detriment to her life and future and acting in accordance with his wishes would make her life 'increasingly better'.[162]
·Ms Wearne felt that persevering with the Respondent would bear positively on her career and bring her closer to her goal of opening her own salon.[163]
·Finally, the Complainant submits that Ms Wearne experienced a traumatic childhood and was abducted and raped at the age of 14.[164]
[161] Ibid [29].
[162] Ibid [34].
[163] Ibid [33].
[164] Complainant's closing submissions [17].
As a result, the Complainant contends that a power differential existed between Ms Wearne and Mr Dib. By analogy to Hill v Hughes,[165] the Complainant contends that Ms Wearne could be characterised as 'socially and individually vulnerable' in the circumstances.[166]
[165] [2019] FCCA 1267.
[166] Complainant's closing submissions [18].
Respondent's contentions
The Respondent makes the following submissions regarding the relationship between Ms Wearne and Mr Dib:
·Mr Dib does not recall whether there was a portrait photograph on Ms Wearne's application or whether her resume was first viewed by himself or the salon manager, Ms Elphick.[167] Further, the interview would have been arranged by Ms Elphick and not Mr Dib.[168]
[167] Respondent's SOFC [8].
[168] Ibid [8].
·Ms Wearne reported to Ms Elphick as the manager of the salon and not directly to Mr Dib.[169]
[169] Ibid [11].
·Mr Dib discussed the opportunity for Ms Wearne to purchase a salon in Robina from him but did not mention a partnership.[170] In its closing submissions, the Respondent emphasises that the offer had been made to other staff members.[171] Ms Wearne stated that she was not aware that Mr Dib had offered the opportunity to other staff members but that she would not be surprised if he had. Ms Wearne said that she did not feel that she was special to that opportunity.[172]
[170] Ibid [9].
[171] Respondent's closing submissions filed 25 July 2022 [14].
[172] Ibid [14]; T 2-24, ll 21-39.
·In response to the Complainant's contention that Ms Wearne was employed for her appearance and Mr Dib's attraction to her, the Respondent says that the salon was short-staffed due to difficulties in employing suitably experienced hairdressers. Moreover, the Complainant had excellent experience and was a strong candidate for the role.[173]
[173] Respondent's SOFC [10].
·Mr Dib maintained a professional relationship with all staff members. As the salon premises is 60m2 in size, the team works closely resulting in 'comradery between the staff' and an environment in which staff members discussed their personal lives.[174]
·The Respondent rejects the notion that Mr Dib berates or derides staff publicly. Rather, Mr Dib discusses performance issues with his staff privately by taking the conversation outside.[175]
·Mr Dib denies providing undue attention to the Complainant or treating her differently to other staff. The Respondent claims that any attention directed at Ms Wearne was for the purpose of maintaining a high standard of professionalism and reputation with customers.[176]
[174] Ibid [13].
[175] Ibid [14].
[176] Respondent's Statement of Facts and Contentions filed 9 October 2020 Ibid [15].
The Respondent makes a number of additional comments in its Statement of Facts and Contentions. In particular:
·Mr Dib has worked as a hairdresser for over 47 years and has operated Michael Dib hairdressing for 35 years. He has employed over 3,000 staff, both male and female, across numerous salons during this time.[177]
·Complaints of this nature have not been made about the Respondent previously and he prides himself on a positive workplace culture.[178]
[177] Ibid [34].
[178] Ibid [37].
Statutory framework
The AD Act is intended to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct.[179]
[179] Anti-Discrimination Act 1991 (Qld), Preamble.
Part 2, Chapter 2 of the AD Act identifies 'Prohibited grounds of discrimination'. Section 7 prohibits discrimination on the basis of various defined 'attributes'. That section states:
7 Discrimination on the basis of certain attributes prohibited
The Act prohibits discrimination on the basis of the following attributes—
(a)Sex;
…
Section 8 relevantly states:
8 Meaning of discrimination on the basis of an attribute
Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of –
(a)a characteristic that a person with any of the attributes generally has; or
(b)a characteristic that is often imputed to a person with any of the attributes;
…
Part 3 of Chapter 2 of the AD Act identifies 'Prohibited types of discrimination'. Section 9 prohibits 'direct' and 'indirect' discrimination, while ss 10 and 11 define the meaning of direct and indirect discrimination:
10 Meaning of direct discrimination
(1)Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
Example—
R refuses to rent a flat to C because—
•C is English and R doesn't like English people
•C's friend, B, is English and R doesn't like English people
•R believes that English people are unreliable tenants.
In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.
(2)It is not necessary that the person who discriminates considers the treatment is less favourable.
(3)The person’s motive for discriminating is irrelevant.
Example—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.
(4)If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5)In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
11 Meaning of indirect discrimination
(1)Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a)with which a person with an attribute does not or is not able to comply; and
(b)with which a higher proportion of people without the attribute comply or are able to comply; and
(c)that is not reasonable.
(2)Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a)the consequences of failure to comply with the term; and
(b)the cost of alternative terms; and
(c)the financial circumstances of the person who imposes, or proposes to impose, the term.
(3)It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4)In this section—
term includes condition, requirement or practice, whether or not written.
Example 1—
An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.
Example 2—
An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.
Part 4 of Chapter 2 of the AD Act identifies 'Areas of activity in which discrimination is prohibited'. Division 2 of Part 4 deals with 'Work and work-related areas'. Section 15 deals with discrimination in the work area:
15 Discrimination in the work area
(1) A person must not discriminate –
(a)in any variation of the terms of work; or
(b)in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
(c)in dismissing a worker; or
…
(f) by treating a worker unfavourably in any way in connection with work.
Section 129 of the AD Act addresses victimisation. It states:
129 Victimisation
A person must not victimise another person.
Maximum penalty—
(a) in the case of an individual—45 penalty units or imprisonment for 3 months; or
(b) in the case of a corporation—170 penalty units.
Section 130 of the AD Act relevantly states:
130 Meaning of victimisation
(1) Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—
(a)because the complainant, or a person associated with, or related to, the complainant—
(i)refused to do an act that would amount to a contravention of the Act; or
(ii)in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
(iii)is, has been, or intends to be, involved in a proceeding under the Act against any person; or
(b)because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).
(2) In this section, a reference to involvement in a proceeding under the Act includes—
(a)making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
(b)involvement in a prosecution for an offence against the Act; and
(c)supplying information and producing documents to a person who is performing a function under the Act; and
(d)appearing as a witness in a proceeding under the Act.
Was the Complainant sexually harassed, discriminated against or victimised by the Respondent?
It is unsurprising in a matter such as this one, that great emphasis was placed on the credit of the Complainant and of the Respondent by their respective representatives.[180]
[180] Complainant's closing submissions [6], [50]-[58], [59]-[72], [73]-[85]; Respondent's closing submissions [29]-[40], [41]-52], [53]-[60].
In Rush v Nationwide News Pty Ltd (No 7),[181] Wigney J made the following observations regarding the credibility of a witness and the reliability of their evidence:
[307] Witness demeanour is one consideration which may assist a judge to resolve conflicting evidence. Sometimes the demeanour of a witness giving evidence about contentious issues may provide insight into whether the evidence given by the witness is either honest and reliable, or dishonest and unreliable. Signs that may indicate dishonesty or unreliability include evasiveness, nervousness, an apparent unwillingness on the part of the witness to make appropriate or obvious concessions and even, in some circumstances, overconfidence.
[308] Even where a witness displays such traits when giving evidence, however, some caution must generally be exercised. That is because a witness may, for example, appear nervous or evasive for reasons that have nothing whatsoever to do with the honesty or reliability of their evidence. Other witnesses may be able to give evidence in an appropriately confident and direct manner and yet their evidence may be found to have been unreliable or, worse still, dishonest. Witness reliability is not always a reliable signpost. Indeed, judges have often cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on the appearance of witnesses. Scientific research has also cast doubt on the ability of judges to tell truth from falsehood accurately on the basis of such appearances: see Fox v Percy (2003) 214 CLR 118 at [30]-[31] and the cases there cited.
[309] Aside from demeanour, there are other factors or considerations which may assist a judge in determining the credibility of a witness and the reliability of his or her evidence. Those considerations include: whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness; the plausibility and apparent logic of the events described by the witness; and the consistency of the account of the events described as compared with other objectively established events. (emphasis added)
[181] [2019] FCA 496.
Testing the veracity of witness evidence was also discussed by Keane JA (as he then was) in Camden v McKenzie.[182] His Honour said:
[34] Usually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation…
[182] [2007] QCA 136.
Returning to the standard of proof articulated in Briginshaw, I note the following observations of Scotting DCJ in Sherry v Toyota Motor Corporation Australia Limited:[183]
[95] Where the law requires the proof of any fact, the Court must feel an actual level of persuasion of its occurrence before it can be found. It cannot be found as a result of the pure mechanical comparison of probabilities independent of any belief in its reality. It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Court. Reasonable satisfaction is not a state of mind that is established independently of the nature and consequences of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of the occurrence of a given description, or the gravity or consequences flowing from a particular finding are considerations which must affect the answer to the question, whether an issue has been proved to the reasonable satisfaction of the court: Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 360-361.
[183] [2020] NSWDC 827.
In the reasons which follow, I have had regard to the credibility of the witnesses and the reliability of their evidence in determining whether, on the balance of probabilities, the Complainant's case has been made out. However, I have also had regard to the other available evidence and circumstances in order to consider the evidence of Ms Wearne and Mr Dib and determine if I am persuaded that Ms Wearne has satisfied the onus on her of demonstrating that the alleged conduct occurred.
With regard to the evidence of Ms Wearne, I observe that there were discrepancies in details and descriptions between her initial interview with Mr Heffernan, the matters set out in her Statement of Facts and Contentions, the information she provided to Dr Garg and the answers she gave under in her evidence-in-chief and under cross-examination. At various times during the hearing, Ms Wearne was clearly frustrated and, at times, incredulous in the face of questioning testing her truthfulness and when hearing witness evidence which did not accord with her version of events.
The Commission heard evidence regarding historical matters where it was alleged that Ms Wearne had not been truthful in her dealings with the police. While I have noted these submissions and Ms Wearne's explanations regarding those matters, I find that they happened some years ago and I have determined the matters before me on the basis of the contemporaneous evidence and recollections of the witnesses and the information provided by Ms Wearne to Dr Garg.
I found Mr Dib to be, at times, a defensive witness with a degree of disregard for the process of determining the complaint at the Commission. Mr Dib seemed to be annoyed and frustrated by having to attend the Commission and the history of the matter demonstrates that on a number of occasions, Mr Dib sought to delay both the conciliation and the hearing. Whether Mr Dib's demeanour as a witness was as a result of his frustration at being called to answer allegations he denies in their entirety or because he has a disrespect for the process itself was unclear.
Much was made of Mr Dib's non-payment of a costs order made against him and his initial claim that the reason it had not been paid was that he did not have funds to pay it. Mr Dib confirmed at the hearing that his children financially support him but that he had not asked them to pay the costs order as he does not agree with the order and intended to appeal it (though the 21-day appeal period had lapsed some months earlier). While this clearly demonstrates that Mr Dib has a misunderstanding of the way that orders of the Commission operate and believes that disagreeing with a decision means that he does not need to comply with it, it does not fundamentally undermine his truthfulness as a witness.
With regard to Mr Holmes and Ms Elphick, the thrust of questioning and submissions regarding credit was that the witnesses called for Mr Dib had reason to be loyal to him and therefore their answers lacked truthfulness. I acknowledge that Ms Elphick retains a business relationship with Mr Dib and runs a salon carrying his name, and Mr Holmes said that he has remained in touch with Mr Dib in what I would call a friendly business mentoring relationship. However, I found that both witnesses appeared to be forthcoming in answering the questions to the best of their recollection and did not appear to be reticent, defensive or lack credibility. In the case of Mr Holmes, he openly acknowledged that he had used 'rough' language in a text exchange with Ms Wearne regarding a delay in his pay and explained that this was as a result of a new bookkeeper being appointed. I had no reason to doubt the evidence of Mr Holmes or Ms Elphick, though I would note that the evidence of these two witnesses was not something which weighed heavily in my decision-making.
I find that the report of Dr Garg is of little value in circumstances where information provided to Dr Garg by Ms Wearne was incomplete or not an accurate reflection of the circumstances. For example, Dr Garg made a range of findings on the basis of Ms Wearne's comments to him about her capacity to be in public places or to work with a male boss. The evidence demonstrated that Ms Wearne was working in a busy public location and that she had worked for a male boss very soon after leaving employment with Mr Dib.
Allegations regarding Mr Dib's conduct and behaviour
On the basis of the evidence before me, it appears that Ms Wearne worked at the salon for a period of approximately seven weeks and during that time, she worked three eight-hour shifts per week. There also appears to have been a time during the seven weeks where Ms Wearne was absent from work as a result of back pain. There are no allegations made regarding inappropriate behaviour and conduct directed at Ms Wearne outside of her employment. Ms Wearne says that the conduct commenced within the first few weeks of her employment and continued on an ongoing basis throughout her employment.
The evidence also demonstrated that Mr Dib did not work in the salon on a full-time basis and that there were occasions where he 'dropped in' or watched the activities of the salon from outside near the fruit shop. This means that the alleged conduct would have had to occur at the salon during one or more of approximately 21 shifts worked by Ms Wearne during her employment and during the window of time Mr Dib was present.
I have considered each of the events or categories of inappropriate behaviour and conduct alleged by Ms Wearne and will address those below.
Mr Dib's alleged response to Ms Wearne's resume
While there was some suggestion that Mr Dib had selected Ms Wearne for employment on the basis of a photo on her resume, I am unable to establish that this was the case. While there appears to be agreement that the role was advertised through an online job seeking website, it was unclear which version of Ms Wearne's resume was uploaded to the site. Mr Dib's evidence appeared to be that he was also made aware of Ms Wearne's availability through a sales representative. Mr Dib's evidence also appeared to be that he was experiencing difficulty finding qualified staff to fill positions and that after a short interview and discussion about pay, he offered Ms Wearne the job. In any case, Ms Wearne's own evidence was that while it could have been the case, she did not believe she had been hired by Mr Dib on the basis of the photo on her resume.
Mr Dib's general conduct towards Ms Wearne
I do not find that the evidence demonstrates that on the balance of probabilities, Mr Dib directed an excessive amount of attention at Ms Wearne or that his attention was 'intense or determined' or of leering manner indicative of sexual attraction. I find it more likely that if Mr Dib was directing attention toward Ms Wearne, it was as a result of the fact that she was a new staff member undergoing a trial period. The evidence made it clear to me that Mr Dib has high standards and high expectations of staff and that he took an active interest in the salon. It is also apparent that Mr Dib prides himself on his relationships with staff. I accept that Mr Dib may have paid more attention to Ms Wearne than he did to other longer serving or more established employees, but I do not find the evidence makes out that the attention paid to Ms Wearne was of an inappropriate nature.
Remarks alleged to have been made by Mr Dib
Ms Wearne recalled occasions where Mr Dib made sexual remarks toward her while positioning himself close to her. Mr Dib denies making such remarks. The allegation is that some of these remarks were made in the salon and that some of the remarks were made in the 'back room' of the salon.
There do not appear to be any occasions where Ms Wearne was in the salon alone with Mr Dib and, with the exception of activities occurring in the very small back room of the salon, there would have been at least one, but more likely several people, both employees and customers present.
There is a specific event Ms Wearne recalls where she says that Mr Dib made sexualised remarks to her while she was eating yoghurt in the back room of the salon. Mr Dib simply denies that this occurred at all. Ms Wearne's initial evidence was that Mr Dib made the remarks under his breath so that only she could hear him but she also appeared to recall that her colleague Ms Thompson, who worked at the salon for one week, had been there and that she thought Ms Thompson had heard the conversation. Ms Thompson did not give evidence to the Commission. However, if I accept Ms Wearne's evidence that Ms Thompson heard the remarks Mr Dib made, this would not accord with her recollection that he said the words under his breath so that no one else would hear or that the remarks were made to her by him in the back room when there was no one else present. I am not persuaded that Mr Dib made sexualised remarks to Ms Wearne while she was eating yoghurt.
Ms Elphick and Mr Holmes stated that they had not witnessed such remarks and that they believed it was unlikely such remarks were made. I understand that Ms Elphick and Mr Holmes have an ongoing positive relationship with Mr Dib and it has been suggested that this has influenced their evidence, however, I found both Ms Elphick and Mr Holmes to be honest witnesses recollecting events to the best of their ability.
Having regard to the evidence before me On the balance of probabilities, I am unable to establish that Mr Dib made sexualised remarks to Ms Wearne in the workplace.
Mr Dib's alleged physical conduct
I will first deal with Ms Wearne's allegation that Mr Dib would regularly introduce her to his friends and encourage her to hug them. I am simply unable to establish on the basis of the evidence available to me that Mr Dib ever told Ms Wearne to hug his friends. On Ms Wearne's own evidence, she says that she felt she should hug people but that Mr Dib did not tell her to do this. I do not accept that Ms Wearne feared reprisal if she did not hug people. Further to this, the evidence does not even appear to demonstrate that Mr Dib regularly introduced his friends to Ms Wearne.
While Ms Wearne says that Mr Dib would frequently touch her on the shoulders and arms and that this progressed to touching her on the back and the waist, there was one specific occasion that Ms Wearne discussed which involved sexual touching from Mr Dib. Ms Wearne says that in the back room, while she was mixing a colour, Mr Dib grabbed and squeezed her backside and said, 'you go, girl'. While Mr Dib appeared to accept that he may say something such as 'you go, girl', he said it would be in the context of providing encouragement or praise. Ms Elphick did not think this was the kind of phrase Mr Dib would use, but the fact that he did not say it to Ms Elphick does not mean that he did not use it with other staff members, or Ms Wearne. I accept that colloquially, 'you go, girl' is a term used to encourage or affirm something a person is doing. I accept that Mr Dib may have used these words to Ms Wearne on occasion, but I am unable to establish that the words were said with a sexual intent. With regard to the touching of Ms Wearne's bottom, Ms Wearne at various times described the contact as a squeeze, a pinch, a pat and a slap. While one may suggest that it is the contact with the bottom that is of consequence rather than the language used to describe it, I find that the actions are different and that Ms Wearne's various descriptions of the contact have an impact on the reliability of her recollection. For example, Ms Wearne described the touch as a slap, but when shown a photo of the back room and asked how it was possible that a person would have enough room to move their hand in a slapping motion, Ms Wearne described the touch as more of a pat. However, the interview undertaken with Mr Heffernan that the Commission heard a recording of, described the touch as a pinch.
I am not persuaded on the balance of probabilities that Mr Dib slapped, patted, pinched or squeezed Ms Wearne's bottom in the back room of the salon.
With regard to the other touching of Ms Wearne, Mr Dib denies the touching and Ms Wearne was unable to describe with any level of detail or precision when the touching occurred or who may have witnessed it in the busy salon. The evidence of all of the witnesses was that the salon was a busy place and that it was not unusual for staff members to have incidental touching of one another as they moved around between salon chairs, trolleys and the basins. I accept that there may have been occasions where Mr Dib had incidental contact with Ms Wearne in the salon, but I am not persuaded to the requisite level of satisfaction that Mr Dib touched Ms Wearne in an inappropriate or sexual nature on a range of occasions while in the salon.
Dropping objects and 'hands in pockets' incidents
Ms Wearne alleges that Mr Dib would deliberately drop objects and ask for her to pick them up and that this was an act of sexual dominance. Ms Wearne recalled that the first time Mr Dib dropped something and asked her to pick it up, it did not appear to be an overtly sexual act but that it followed an incident where Mr Dib had asked her to take her hands out of her pockets while he was speaking to her and that she saw these behaviours as Mr Dib wanting to tell her what to do and have her do it and that the actions were about dominance and control.
Mr Dib's recollection of the conversation where he told Ms Wearne to take her hands out of her pockets largely correlates with Ms Wearne's recollection. On the basis of the description of that event by both Mr Dib and Ms Wearne, I am unable to find that the direction that Ms Wearne remove her hands from her pockets was one of sexual dominance or power. It seems to me that Mr Dib may have spoken to Ms Wearne like she was a child while seeking to have her change her body language and demeanour during a conversation where he was providing her with criticism regarding an aspect of her work, but I am unable to place the behaviour any higher than that.
Ms Wearne had trouble recollecting what items Mr Dib had dropped for her to pick up but appeared to allege at times that it was his sunglasses, his sunglasses case and on one occasion, his phone. Ms Wearne recalled at one point that this occurred five or six times over a period of about two and half weeks and at another time she referred to it occurring ten or twelve times. Ms Wearne recalled discussing the matter with Mr Holmes, who denied having any recollection of such a thing occurring. Ms Elphick did not recall seeing Mr Dib drop things for Ms Wearne to pick up, but said that generally if she dropped something, Ms Wearne would pick it up, and vice versa. In order to accept this allegation, I would need to be satisfied that Mr Dib was dropping personal effects deliberately and risking damaging them and that he was demonstrating sexualised responses to Ms Wearne picking up the items in the salon in front of other staff and customers and that this happened on anywhere between 6 and 12 occasions and on some days, multiple times. In the absence of any corroborating evidence supporting Ms Wearne's allegation that Mr Dib repeatedly dropped things and watched her in a sexualised way as she picked them up and on more than one occasion, groaned in a sexual way while she picked items up, I find I am unable to establish on the balance of probabilities that this occurred.
The hair washing incident
The hair washing incident as described by Ms Wearne in her Statement of Facts and Contentions is set out at [56] above. Mr Dib recollects a time that Ms Wearne was having her hair washed but recalls that it was after hours during a training night. Mr Dib has a recollection of spraying the salon manager in a playful way during the evening and agrees that it was possible that some of the spray may have hit Ms Wearne while she was having her hair washed.
The first thing to note is that Ms Wearne's description of the area the basins were in as a 'little enclosed area' and a 'dark private room' is not supported in any way by the evidence. It is clear that the basins are in an area separate to the cutting chairs, and the evidence is that the light bulbs are 'softer' than in the main salon but the area could in no way be described as enclosed or dark.
Ms Wearne's evidence is that at the time she alleges the incident occurred, she and Ms Thompson were the only people in the salon and that it was late and there were no customers. The consistent evidence throughout the hearing appeared to be that Mr Dib was not in the salon after mid-afternoon.
Ms Thompson did not give evidence at the Commission. In the absence of a witness to the events, I need to balance the two versions of events considered at the hearing. If the hair washing occurred during business hours towards the end of a 'dead day', and the only two people present in the salon at the time were Ms Wearne and an apprentice with less than seven days experience working in the salon, it means that had a customer walked in, Ms Wearne would have been unavailable to attend to them. It is possible that Ms Wearne had her hair washed by Ms Thompson during the one week that Ms Thompson worked at the salon, however I am not satisfied to the requisite standard that it occurred in the way Ms Wearne describes. This is particularly the case as it appears that during the week that Ms Thompson worked at the salon, a training night was held where there were a number of employees present and there is a text message in evidence from 1 July 2019 where Ms Wearne makes reference to attending a training night. I find it more likely that Ms Thompson washed Ms Wearne's hair while Mr Dib was present during a training night. Ms Wearne does not say that Mr Dib's conduct with the water nozzle occurred at a training night with other staff present, but at the end of a quiet day at work where only Ms Thompson and Ms Wearne were present prior to Mr Dib's arrival. When considering the material before me, I am unable to establish on the balance of probabilities that the hair washing incident occurred as alleged by Ms Wearne.
Reasons Ms Wearne ended her employment with Mr Dib
Mr Dib and Ms Wearne both recall a conversation that occurred on the last day of Ms Wearne's employment. It is agreed that the topic of the conversation was Ms Wearne's compliance with the re-booking policy of the salon. The evidence demonstrates that Ms Wearne was unhappy or uncomfortable with the re-booking policy and that Ms Elphick had cause to discuss it with her. I accept that Ms Elphick asked Mr Dib to discuss the matter with Ms Wearne and that a potentially elevated or heated conversation took place. As best I can understand it, the conversation between Ms Wearne and Mr Dib ended when her client arrived. Ms Wearne then returned to work and at some point following that, she says Mr Dib approached her with two men in his company and asked her to give him a kiss on the cheek and he would forget about the argument and that it was after that when she gathered her things and left the salon. Ms Wearne says that on her way home from work, she stopped to report the matter to police. Mr Dib denies that the conversation where he asked her to kiss him on the cheek occurred.
It seems to me that the most likely reason Ms Wearne decided to end her employment with Mr Dib after a period of seven weeks was as a result of her disagreement with the salon policy and practice regarding client re-booking rates. It also appears that on at least one occasion, there had been tension regarding the number of cigarette breaks Ms Wearne was taking. Ms Wearne also discussed her ongoing back problems and the issues she was having with standing for extended periods of time. I am unable to conclude on the balance of probabilities that Ms Wearne left her employment with Mr Dib as a result of sexual harassment or discrimination. I find it more likely that Ms Wearne no longer wished to work in the salon for the reason that she disagreed with management and the re-booking policy.
The only documented evidence of communication between Mr Dib and Ms Wearne that was before the Commission was in the form of text messages. The messages appeared to be polite and respectful. Ms Wearne's final message which confirmed her decision to end her employment, made no mention of the harassment and discrimination matters she alleges. This confirms my view that the end of the employment was prompted by disagreement with the re-booking policy.
While Ms Wearne says that on her way home from work on the day that she ended her employment, she went to the police to report Mr Dib's behaviour, there is no evidence that this occurred. As I understand Ms Wearne's evidence, the police officer advised her that there was nothing the police could do about the matter and that she should go to the Fair Work Commission. The difficulty with this evidence is that there is no record of Ms Wearne's attendance upon the police station and I have no way of knowing what the nature of the matters she reported was – other than her recollection of events. I did not find Ms Wearne to have a reliable recollection of matters and I became concerned during the hearing that Ms Wearne may be embellishing some matters in an attempt to make her evidence more compelling.
I am not satisfied on the balance of probabilities that the incident where Mr Dib apparently asked Ms Wearne to kiss him on the cheek occurred. I am troubled by the exchange which occurred during Ms Wearne's evidence where, for the first time, she added to the story that there were two men accompanying Mr Dib. I am further troubled that Ms Wearne appeared to say that she did not intentionally leave that out of the story but that she also did not want Mr Dib to have the opportunity to seek evidence or statements from the men involved. Mr Dib denies the incident occurred and does not know who Ms Wearne is referring to when she describes the two men.
There is no record of Ms Wearne visiting the police station and it would have been within her capacity (or that of her representative) in preparing for this hearing to visit the police station to attempt to verify the visit. This is particularly the case where it would be possible to determine with some precision, the time that Ms Wearne would have attended the station on the way home following her resignation.
The only contemporaneous piece of documentary evidence relating to the end of Ms Wearne's employment is a text message which reads, 'This isn't working for me MD. Best of luck with your salon but I'm sorry, im not going to be apart of it' [sic]. That message is apparently sent at 1.59pm on the day of the end of Ms Wearne's employment. The message makes no mention of the reason for the resignation, but the words accord with the ongoing issue Ms Wearne had with the re-booking system rather than ongoing sexual harassment being the reason for the resignation. I also note that the log of text messages demonstrates that two days earlier, Ms Wearne was messaging Mr Dib in what I would call a very friendly way: 'Hellohaa (smiling emoji) just letting you know if you haven't done my pay already, I did 22hrs instead of 24hrs. Just so you don't over pay me again like last week' (12.24pm) and 'c u tonight for training (smiling emoji) Ill be there!' (12.26pm).
Post-employment impact on Ms Wearne
The Commission heard evidence about Ms Wearne's experiences post-employment. Some of this evidence was clearly presented in order to establish loss or damage suffered by Ms Wearne in the event that her complaint was proven. As I have determined that on the balance of probabilities, I am not satisfied that the conduct and behaviour Ms Wearne alleges did occur, I am not considering that evidence from the perspective of determining damages.
However, I have considered the information Ms Wearne provided to Dr Garg and also Ms Wearne's evidence about her experience post-employment in determining whether the conduct alleged did in fact occur. Ms Wearne has repeatedly referred to the impact of Mr Dib's alleged behaviour on her capacity to work with and relate to men and male employers. It is difficult to reconcile these claims with the evidence that Ms Wearne went to work for a male employer in a barber shop not long after leaving employment with Mr Dib and that she is currently working for a male employer who was the person who initially trained her.
Ms Wearne also told Dr Garg that she has difficulty being in public places, however, the evidence demonstrates that Ms Wearne went on to work in busy public places. I accept Dr Garg's assessment that it is the case that someone may continue to be able to do activities that cause them stress when they are placed in a position where they have no choice, however, I find it more likely that Ms Wearne was selective in her reporting of these matters to Dr Garg.
I formed the impression that Ms Wearne had not provided Dr Garg with an accurate account of a range of matters. While this may have impacted on the outcome of Dr Garg's report, the other issue is that it undermines my confidence in Ms Wearne's evidence before the Commission.
Victimisation
I have considered the letter which Mr Dib had his lawyers send to Ms Wearne around about the time that the matter was set down for conciliation. Ms Wearne says that she did not initially read the letter and at the hearing, appeared to have still not read the letter. Ms Wearne also said that after reading the letter, her father provided encouragement by saying that he thought it strengthened her case.
Mr Dib's evidence was that he was distressed that Ms Wearne had been discussing her allegations with third parties. Ms Wearne denied having discussed the matter with anyone other than her partner, her parents, Ms Thompson and her legal representatives. I have no evidence that Ms Wearne discussed the matter with third parties. Similarly, I have no evidence that she did not. In any case, I note that the correspondence of 17 August 2020 states:[184]
We understand that the organisation, Human Rights claims, acts for you in relation to a complaint made against our client. This correspondence is not intended to affect that matter, but is to advise you that as no finding has been made against our client which would provide you with legal justification to spread these defamatory allegations, and that the allegations are being contested, that any discussions which would pertain to our client's guilt in relation to those matters are thereby defamatory.
[184] Exhibit 6.
The letter goes on to say that proceedings will be commenced immediately if Ms Wearne fails to cease making defamatory comments in relation to Mr Dib. The letter further states that the lawyers are instructed to seek that Ms Wearne pay Mr Dib's legal costs following the dissemination of the defamatory material, including the costs of the letter, the costs of any Deed of Settlement to be prepared and the costs of any advice from counsel. The letter further requests that Ms Wearne pay Mr Dib damages to compensate him for the damage to his reputation and consequent financial loss arising from publication.
I imagine that receiving such a letter would not have been pleasant and may have caused Ms Wearne some concern in the event that she had read it. I am unaware of what occurred following receipt of the letter. But in circumstances where the letter specifically acknowledges that Ms Wearne has made a complaint and that the correspondence is not intended to affect that matter, I can only consider that Mr Dib and his lawyers were of the belief that Ms Wearne had made allegations to third parties or disseminated material to them.
However, the allegation of victimisation made by Ms Wearne in this matter is that the letter was aimed at encouraging Ms Wearne to withdraw her complaint. The letter clearly states that the correspondence is not intended to affect the complaint.
Ms Wearne has not made out the allegation that she was victimised by way of the cease and desist letter of 17 August 2020.
In circumstances where I am not reasonably satisfied on the balance of probabilities that the alleged conduct has occurred, I must dismiss the complaint.
Order
The complaint is dismissed.
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