Yaghoubi v Fedayee - [2013] SAEOT 3

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
YAGHOUBI v FEDAYEE & ORS
[2013] SAEOT 3
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Ms H Jasinski
22 February 2013
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION
Sexual harassment - complaint made alleging discrimination and victimisation - complaints denied by the respondents - whether the alleged conduct actually occurred. Finding that a basis for the allegations has not been established to the requisite standard - claim dismissed.
Equal Opportunity Act 1984 (SA), referred to.

YAGHOUBI v FEDAYEE & ORS
[2013] SAEOT 3

Ms Yaghoubi made a complaint to the Commissioner for Equal Opportunity (“the Commissioner”), alleging that, between January and June 2009, she was sexually harassed and victimised by the respondents, Nader Fedayee and Qadir Fedayee, at the Afghan Grocery Store. The Commissioner referred the matter to the Tribunal pursuant to s 95B of the Equal Opportunity Act 1984 (“the Act”).
At the hearing of the matter, Ms Hajar Yaghoubi, Mr Ali, Ms Holas and Mr Mehdi Hosseini gave evidence in the complainant’s case. Mr Qadir Fedayee, Mr Nader Fedayee, Ms Khadija Fedayee, Ms Taheri and Mr Fayazi gave evidence in the respondent’s case.
The Facts
Ms Yaghoubi said, in evidence, that she and her four children arrived in South Australia from Iran in November 2008. She said that her parents were from Afghanistan, but that she was born in Iran. She said that her first husband had died in Iran and that she had re-married and divorced a second husband. She said that she came to Australia as a refugee, having been kidnapped by the police in Iran and raped.
On the day that she arrived in Adelaide, Ms Yaghoubi was taken, by a caseworker, to the Afghan Grocery Store (“the shop”), which was the closest Afghan shop to her dwelling in Salisbury North. When she first arrived in Adelaide, Ms Yaghoubi did not have a drivers’ licence and relied upon public transport.
Qadir Fedayee is the proprietor of the shop, which he set up in August or September of 2008 in Church Street Salisbury. The shop was in Church Street at all relevant times in relation to this complaint. It was moved to Johns Street Salisbury in early 2011. Nader Fedayee and Khadija Fedayee worked in the shop from time to time at all times relevant to this complaint. Nader Fedayee came to Australia in March 2008. His wife and children are in Indonesia.
Ms Yaghoubi said that, from November 2008 until about April 2009, she would visit the shop at least weekly, and sometimes more frequently than that. She met both Qadir and Nader Fedayee, and their sister. She also met Zahara Taheri at the shop. Ms Yaghoubi said that she initially understood that Ms Taheri was the sister of the Fedayee brothers, but later came to believe that Ms Taheri was actually Qadir Fedayee’s girlfriend.
Ms Yaghoubi said that, in about March 2009, she went to a religious ceremony at Ms Taheri’s house which Qadir and Nader Fedayee also attended.
Subsequently, Ms Yaghoubi said, she purchased a car from Qadir Fedayee. Ms Yaghoubi then hosted a religious ceremony at her house, seeking good fortune with the car. Ms Taheri did the cooking for that function. Qadir and Nader Fedayee attended, as did Ms Yaghoubi’s case worker from the Migrant Resource Centre. It was the evidence of Qadir Fedayee that Ms Yaghoubi called Nader Fedayee her “dear beloved” at this function and asked him to go out of the room with her.[1]
[1] Transcript p 209
Ms Yaghoubi gave evidence that, subsequent to the dinner at Ms Yaghoubi’s house, she met Nader Fedayee in the city by prior arrangement and, with him, visited Ms Hogarth, a migration agent, to get some advice about the possibility of bringing Ms Yaghoubi’s ex-husband and her mother to Australia from Iran. Ms Yaghoubi said, of Nader Fedayee’s conduct to her before this day:[2]
Q    Before this appointment had you had any problems with Nadir [sic]
A    Sometimes according to him he would sort of joke about things like for example “You don’t have a husband, it’s good not to have a partner or a wife, your husband has died. If my wife was dead as well that would be good” and that kind of thing. I would just ignore it, and I would say “This has got nothing to do with me”.
Q    Where did he say those types of things.
A    When I was at the shop doing my shopping and paying for my groceries.
[2]    Transcript p 15
Ms Yaghoubi said that, on their visit to the migration agent, Nader Fedayee made comments which caused her to feel uncomfortable. She said:[3]
A    He commented about for example ladies wearing short skirts, that these women, that they were half-clothed or they showed their body, they make you feel sexually attracted.
Q    Did he say anything to you.
A    When he came back and he came out of the appointment, yes. After when he came out we went to a shop, men’s clothing shop, and he took some clothes to the change room and he kept telling me “I’m not feeling well, you come inside and help me.” That’s when I felt very uncomfortable and I left and he said “I’ll give you a lift home” and I said “I don’t want it, thank you” and I left.
[3]    Transcript p 15
Ms Yaghoubi said that she had never been alone with Nader Fedayee in a car. The following exchange took place in examination in chief: [4]
Q    Have you ever heard of a temporary marriage in Islam.
A    I heard about it in Australia.
Q    Have you every proposed a temporary marriage with Nader.
A    Everything he did was surrounded – everything he did was around this topic, so there won’t be any difference. He would say a few times, because his brother’s girlfriend was in a temporary marriage situation.
Q    Did you ever suggest to Nader that you should have a temporary marriage.
A    No.
[4]    Transcript p 16
Ms Yaghoubi was asked about the next occasion upon which she saw Nader Fedayee after their trip to the city. She said she next saw him in the shop.[5]
Q    What kind of – what did he say to you when you went into the shop after you’d been into the city.
.      Every time I go to his shop he would say garbage and nonsense and when I would get upset he would tell me “Because you are a Sayed, please forgive me, it was just a joke”. But these kind of things that he would talk about, it was very inappropriate for a joke. A few times I told his brother who was the owner of the shop about this, but his behaviour didn’t change at all.
Q    You said he talked garbage and rubbish. Can you tell the tribunal what things he actually said.
A    He would comment about, because I would normally wear fitted clothing, he would comment that I would walk how it would get him excited. He would tell me that how beautiful I am, how wonderful I am and how great I am, good looking I am. He would always comment about my body and “when you come here you make me crazy”. Things like that.
Q    What did you say to him when he would speak like that.
A    I wouldn’t say much. I would just say that “I’m a Sayed and I don’t like this, I don’t like these things.
[5]    Transcript p 16
Nader Fedayee denied saying such things.[6] Nader Fedayee gave evidence that his visit to Ms Hogarth’s office with Ms Yaghoubi occurred before the dinner at Ms Yaghoubi’s house. Nader Fedayee said that immediately after the visit to Ms Hogarth, Ms Yaghoubi insisted on buying him two shirts He said:[7]
A    After we got out of the office I was going to go to Victoria Square to hop on the bus and go to my place but she insisted that because I went through some trouble with her and because of her and she wanted to return the favour and buy me some shirts because there was some shops around the corner in that area that had the specials. The prices wasn’t really high it was about 10 to $15 each shirt so we went there and I said that no, I don’t want shirt and I don’t want this favour to be returned, that’s all good with me. But she insisted that we finally went to the shop and she bought me two shirts. When I went to the change room to change the shirts she was going to come to the change room with me but I said no, don’t come to the change room and I did it on my own.
[6]    Transcript p 248, 249
[7]    Transcript p 234
Nader Fedayee denied making comments to Ms Yaghoubi about women being half clothed, and being sexually attracted to them. He denied Ms Yaghoubi’s allegation that, once in the change room, he said that he felt ill and asked her to come into the change room. After buying the shirts, it was Nader Fedayee’s evidence that he and Ms Yaghoubi then caught the bus together. Nader Fedayee gave evidence that he got off at the North Park Shopping Centre, where he had parked his car, and his evidence was that Ms Yaghoubi insisted on getting off with him. Nader Fedayee said that he and Ms Yaghoubi got into his car and set off to Gaganis, where he had promised to buy some cheese and other groceries for Najib Fayazi. Nader Fedayee said, in evidence:[8]
[8]    Transcript p 237 - 239
Q    Now you said something happened in the car when you were at a red light, before you got to Gaganis, can you tell the tribunal what happened.
A    When we were in the car there was some discussions and some talks happened that she started - Ms Yaghoubi started talking about temporary marriage and she grabbed my hand and she said that I know the prayers for the temporary marriage and I was confused because earlier on we went to Miss Libby’s office and she was talking about sponsoring her husband and now she was talking about a temporary marriage, so I was confused. But later on I realised that it was all lies, that she was taking me to Libby’s office and she wanted to test me out. I was very upset about her, about her … giving lies and fibs to me and I’m still at the moment, when I’m talking about it and when I have a flashback, it still hurts.
Q    She said something to you about a temporary marriage. What did you say to her.
A    I said to her that “Earlier on you were talking to Libby about sponsoring your husband. You’re a Muslim, I’m Muslim too, and according to the religious rules we cannot marry each other because we are both married so how come you are offering me this?”
Q    Did she respond to you.
A    I realised after that the whole story that me taking her to Ms Libby’s office was just a test, and she was trying to find out whether I’m interested in her or not, and later on she told me that there wasn’t any marriage certificate or any formal marriage between her and her husband, as she said. She wanted to find out whether I’m interested in her, that’s why she took me over there and she was going through all of those process with Ms Libby. That’s how our animosity started from that day.
Q    Did you see her in the shop after that time.
A    Yes, after that date, yes.
Q    How many times do you think you saw her in the shop after that time.
A    Perhaps two or three times.
In an affidavit,[9] Nader Fedayee said that he and Ms Yaghoubi had proceeded to Gaganis, on South Road, where they had met Mr Fayazi. Nader Fedayee said that Ms Yaghoubi had continued to behave towards him in the way she had been at Gaganis, in front of Mr Fayazi. In his affidavit, he said that was “in the shop”, meaning Gaganis, but in cross examination he said that it was in the carpark of Gaganis.
[9] Exhibit D22
Nader Fedayee said that, prior to the visit to Ms Hogarth, there had been times when Ms Yaghoubi had telephoned him repeatedly. He would simply not answer.
Ms Yaghoubi said that she went into the shop about ten to fifteen times after her trip to the city with Nader. She said Nader was at the shop on most of those occasions, but not on all of them. Sometimes Miss Fedayee was there, and sometimes Qadir Fedayee.
Mr Ali gave evidence that Ms Yaghoubi complained to him about the conduct of Nader Fedayee towards her. He said that he had spoken to both Nader and Qadir Fedayee about those complaints. He said that Nader Fedayee said “I’m just joking”. Qadir Fedayee denied that Mr Ali had ever spoken to him about any complaints of Ms Yaghoubi about Nader’s conduct. Nader Fedayee said that Mr Ali telephoned him on the night of Monday 22 June 2009, saying that Qadir had told Ms Yaghoubi she could not come into the shop any more, but Nader Fedayee thought that Mr Ali was raising this in a joking way.
Qadir Fedayee said that Ms Yaghoubi pursued Nader, phoning him often.[10]
[10] Transcript p 209
Khadija Fedayee’s evidence was that Ms Yaghoubi came to the shop frequently, before June 2009, looking for Nader, and that Ms Yaghoubi was disappointed when Nader was not there, and would say that she had made an effort with her appearance for Nader.
Ms Yaghoubi said that, after the trip to the city, she did not go to the shop for a month or two, but returned in June 2009 to look for a particular herbal medicine. She gave the following account of her visit in evidence.[11]
[11] Transcript p 20 - 21
AWhen I first arrived in the shop I went in there with a very serious face, so no-one would say anything to me. Nobody was at the very front of the shop, nobody was sitting there – I think he was probably out the back doing something, don’t know what. I went through the isles to spot the section for the herbal medicines that I was looking for – when I found it I was standing and looking for it and he came from the back of the shop. I was just standing and looking at the shelf when someone from the back held my shoulder and turned me around so I was face-to-face with him – and he asked me to give him a kiss.
QWho was it.
ANader.
QWhat happened after he asked you to give him a kiss.
AMy handbag, which was in my hand, I hit him. I’m not quite sure which part of my body I hit him with, but everything from my handbag sort of came out. So very quickly I collected my things that was on the floor and quickly came out of the shop.
QAnd where did you go after you came out of the shop.
AThat day the Migrant Resource Centre was closed but the next day I went to the Migrant Resource Centre and I reported it.
QGoing back to when you first came out of the shop, where did you go then.
AI went towards my house.
QHow were you feeling at this time.
AI was feeling so bad that I caught the wrong bus. I was in the bus and the bus went on for a couple of stops before I realised that I was on the wrong bus and I got off the bus and went to the right bus stop.
QHad Nader touched you before this.
ANo, if he would have done it, I would have sorted him out.
QWhat did you do when you got home.
AI called Ali and Ali was one of the friends. Every time I would complain to Ali about them and I would say “You’re a man, make them understand that I’m not the type that they think I am or they want me to be”. So I called Ali and I told him what had happened. I was talking to Ali and I explained that I have left my bankcard there and I need to call and tell his brother and also get my card back. Ali kind of didn’t believe me at the beginning about this but he said that he’s going to come over to my house and then when he was present I made the call to Nader’s brother and I explained – and then I was talking to Nader’s brother, I said to him that “I have complained to you many times about your brother about this behaviour and this time this is what he has done. He turned me around, he has touched my body and he turned me around and he wanted to get a kiss from me.” He became very abusive and he said a lot of abusive words to me and he said to me that “You’re not allowed to come to our shop again. If you come here, I will pull your pants down”.
QWhat happened after he said that “if you come to the shop again he would pull your pants down”.
AI didn’t go to the shop ever again but my son who had heard this went to their shop and chased up to get my card.
The “Ali” referred to is Zamen Ali, who is a friend of Ms Yaghoubi. Mr Ali once drove a taxi for Qadir Fedayee. He later became a friend of Ms Yaghoubi. Mr Ali gave evidence in Ms Yaghoubi’s case.
Nader Fedayee denied that an incident resembling the incident described by Ms Yaghoubi as having occurred in the shop on 22 June 2009 occurred, either on that date or at any time. Both Nader Fedayee and Qadir Fedayee denied that Nader was in the shop on the 22 June 2009. Nader Fedayee’s evidence was that the first he heard about the accusation was when he received a copy of the complaint from the Commissioner about six months after June 2009.
Ms Walker argued that it was not put to Ms Yaghoubi in cross-examination that her evidence about 22 June 2009 was false. I reject that submission. Mr Bullock, in cross examining Ms Yaghoubi, expressly asked her about the evidence that Qadir Fedayee would give that Nader was not present in the shop on 22 June 2009.[12]
[12] Transcript p 48
Ms Yaghoubi said, in evidence, that all of her children, and Mr Ali, had heard her telephone call to Qadir Fedayee because she made the call on her mobile telephone and put it on speaker. She said that her children were sitting around her when she made the telephone call.
Mr Ali, in evidence, gave the following account of the afternoon of 22 June 2009:[13]
[13] Transcript p 56 - 57
QYou referred earlier in your evidence to something that happened on 22 June in 2009. Did you speak to Hajar on 22 June 2009.
AYes she ring me afternoon – 2 o’clock she call, I don’t know exactly. She ring me and she cry on the phone, she say “I went today to shop and Nader tried to touch me or hug me and I run away the shop.” She cry, but – and then she were crying, was very upset – I just come to her house and she make a phone call to …
QCan you tell the tribunal about that phone call.
AYes. Yaghoubi called Nader, she crying on the phone – tell Mr Qadir “Today your brother tried to touch me and I’m run out of the shop. Please, I tell you many time your brother and you and not interesting be boyfriend or girlfriend with someone, but I’m just a customer.” And Qadir, he say “You liar and if you come next time to my shop I take out your trousers – I’ll pull your pants down.”
QHow did you hear what Qadir said.
AThat’s brother say “If next time come to my shop I take your trousers”, and then cut off the phone.
QHow was it that you could hear what Qadir was saying on the telephone.
AThe pone was on the speaker.
QWas there anyone else in the room.
AMe, Ms Hajar Yaghoubi and two child.
A statement of Mehdi Hosseini, Ms Yaghoubi’s son, was tendered in evidence, and Mr Hosseini gave evidence. In his statement, he said:[14]
6.    On 21^st June 2009 I was living with my Mum and sisters in my mother’s house.
7.    I recall that on that evening I had been in my bedroom when I heard my Mum raising her voice and it sounded like she was in some sort of argument with somebody. She seemed quite upset.
8.    I walked out of my room and I saw my mother was on the phone. I recall hearing my mother complaining to the person that she was on the phone to about their brother and was upset that they weren’t doing anything about it.
9.    I asked my mother when she got off the phone who she had been talking to but my mother really never disclosed too much information to me. We don’t really tell each other much. My mother has always been a fairly quiet person.
10.    I looked through my Mum’s phone when she walked away and saw that she had been on the telephone to Qadir Fedayee.
[14] Exhibit C3

In examination in chief, Mr Hosseini was asked who was with his mother when she was on the phone. He said that his sisters were with her.[15]
[15] Transcript p 135
In response to questions from the bench, Mr Hosseini said that his mother had been talking on the landline. The following exchange took place in examination in chief:
Q    Which phone did you check.
A    It was the home phone.
Q    And how did you check that phone.
A    I pressed the “Recall”.
Q    And what happened when you pressed the “Recall”.
A    I realised the voice was one of the shopkeepers because I had talked to them before.
Q    So when you pressed the recall button did the phone ring.
A    Yes.
Q    And did someone answer the phone.
A    Yes, someone answered the phone.
Q    And you recognised it as one of the shopkeepers.
A    Yes.
Ms Yaghoubi said, in evidence, that she went to the Migrant Resource Centre the day after the incident at the shop. While she was there, she said that she received a telephone call from the police who told her that they had caught her son shoplifting. She went to the Afghan Grocery shop. She saw that her son and some of his friends were handcuffed with the police outside the shop. She went to the police station and was present when the police interviewed her son.
In his statement, Mr Hosseini gave the following account of what happened on 22 June 2009 (though he later agreed it was probably 23 June 2009):[16]
[16] Transcript p 142
11.    The following day, which was probably the 22^nd June 2009, I didn’t go to school. I can’t recall why.
12.    I recall that my Mum asked me to go to the Afghan grocery shop to get her bank card. I asked her why she had left her bank card at the shop and what had happened the day beforehand given the conversation that she had on the telephone the previous evening. As I mentioned earlier, my mother is a pretty private person and doesn’t tell me much. She just said that I should go and get her bank card for her.
13.    I went to the Afghan grocery shop located at Shop 6, 3 Church Street, Salisbury. It was approximately 12.00 noon.
14.    I asked the shopkeeper, whom I now know to be Nader Fedayee, for my Mum’s bank card. He responded by saying “I don’t care for your Mum”. The way that he said it to me I was really offended. In our culture you do not disrespect women by saying these sorts of things.
15.    I exclaimed back at him and said “This is not the country you are used to”. At that point he said to me to wait for a second and then he went out the back somewhere. I waited for him. He came back a few second later with what appeared to be a kitchen knife.
16.    I remember at that point feeling quite scared.
17.    I ran out of the shop and saw two boys that I know. I asked them to wait with me for the police, then I called the police. Nader threw a stick at my friend. My friend then threw the stick back and hit the window of the shop. Nader did not come out of the shop, he only came to the door.
18.    The police came about five minutes later. By that time Nader had thrown money outside the shop on the ground, like loose change and had also thrown some grocery things up inside his store. He told the police that we had stolen $1,000.00 and that our friend had run off with the money.
19.    The police immediately put handcuffs on our hands. They made us sit on the ground outside the shop. They asked me “who is the other guy that has run away”. There was a fence behind me when I was sitting on the ground. One of the police officers hit the fence as hard as he could and said “If you don’t tell me who it is, I’m going to smash your head in”.
Mr Mehdi Hosseini was unable to say whether it was Qadir or Nader in the shop on 23 June 2009. He was unable to tell the brothers apart.
Qadir Fedayee gave evidence that on Sunday 21 June 2009, he was in the shop when Ms Yaghoubi came in to the shop. He said that he saw Ms Yaghoubi steal “Some kind of a skin cream for hand and face.”[17] He said that he saw her pick it up and put it in her bag. Qadir Fedayee gave the following evidence:
[17] Transcript p 179
A    I was watching her while she was in the shop. Obviously, she has to – as I explained before, there is two aisles that she would have to walk through. She walked through the aisle and as she was walking out I said to her “The cream is still in your bag, you need to pay for it”.
Q    Were there other customers in the shop while Ms Yaghoubi was there.
A    I’m not sure, I don’t think there was but I’m not – I don’t remember.
Q    After you said to her – after you asked her about the cream in her bag what did she say or do.
A    She said “What if I take it?”
Q    What did you say.
A    I said to her “This is my livelihood, this is my work, I work hard for it, that’s not right if you don’t pay for it”.
Q    Did she respond.
…
A    She said to me that a lion is a lion wherever it is and “I have told you before what I was in Iran so I’m going to take it and you can’t do anything.”
Q    Did you say anything further to her then.
A    The cream was sitting there. I said to her that if you behave like this you can’t come to my shop anymore.
Qadir Fedayee said that he did not see Ms Yaghoubi in the shop on Monday 22 June 2009. He said, in cross examination, that he was in the shop for the entire day.[18] He said that his brother, Naser, (ie, a third brother) came to the shop later in the day. He said that they left together at about 7 or 7.30pm.[19]
[18] Transcript p 214
[19] Transcript p 214
Qadir Fedayee said that he received a telephone call from Ms Yaghoubi in the evening of 22 June 2009. He said that he was with Ms Taheri and another friend at the time. Qadir Fedayee gave the following account of the telephone call:[20]
[20] Transcript p 183 - 185
Q    Did you recognise the telephone number from which the phone call was being made.
A     Yes.
Q     Whose phone did you recognise it to be.
A     Ms Hajar’s telephone.
QDid you recognise it to be a mobile telephone number or a landline number.
AIt was mobile number
QSo you think you said hello. What did Ms Yaghoubi first say to you.
AShe said to me, “As you know yourself, you are a nobody. In Iran I would get people kidnapped who they were compared to you kings”.
QWhat did you say in response to that.
AI said to her “What do you want from me?”
QDid she respond and what did you say.
AShe said to me that “I know where you are and if you don’t I’ll do something to you -”
INTERPRETER:   I don’t understand what the word was.
AShe said “I will kill you if you don’t let me come to your shop”.
XN
QDid you respond to it.
AI got scared, I hung up the phone and I contacted the police.
QDid you have your telephone on speakerphone in part of the telephone call.
AYes.
QAt what time did you put it onto speakerphone.
AWhen the phone rang and I realised it was Hajar then I put it on loudspeaker.
QWhen did you contact the police.
AWhen she said that she was going to kill me, she said “I’m going to kill you the I call the police …
QDid you receive another telephone call from that phone that night.
AShe kept calling, she kept calling, over and over.
QHow many times did the phone ring, approximately.
AShe kept calling, I don’t know how many times, maybe 10, 15 times, I wouldn’t be able to tell how many times, and I would see the number, I would hand up. Then she changed her number into private, so, I answered the call when I didn’t know who it was and then …
QDid you have another telephone conversation with her when she rang on a private line.
AI’m sorry, you must have misunderstood what I said. When I received the phone that was on private I thought it might be her so I didn’t answer.
QDid you report this to the police that night or was it sometime later.
AThe minute she said to me that “I’m going to kill you” that’s when I called the police.
QYou telephone the police.
AYes, she said that “I know where you are and I’m going to kill you”. I called the police straightaway.
Ms Taheri gave evidence that she heard part of the phone call on speaker and that she heard Ms Yaghoubi say, on the phone, to Qadir Fedayee “I know that where are you tonight, and I am going to come to that place and kill you all” [sic].[21] She said that she did not hear Qadir Fedayee say to Ms Yaghoubi that if she came back into the store he would pull her pants down. Ms Taheri also said that Qadir Fedayee did not receive any further calls on his mobile phone that evening.[22]
[21] Transcript p 297
[22] Transcript p 309
Qadir Fedayee said that he thought that his brother Nader had gone “somewhere” with his friend, Najib Fayazi.
Qadir Fedayee gave evidence that on Tuesday 23 June 2009, Mehdi Hosseini, Ms Yaghoubi’s son, came into the shop with two other boys. He said there was another boy outside the shop. He said that the three boys in the shop hit him. One of the boys had a piece of wood, and was hitting him with that, and he thought that one of the boys may have had a knife. Qadir said that he had a bag with $3,980 in it, together with 500 phone cards. He said that one of the boys took the bag and passed it to the boy outside. He said that Mehdi took the $200 that was in the till and “passed it on”. Qadir was phoning the police as he was being hit, and the police arrived and arrested three boys.
Qadir Fedayee denied that he had ever told Ms Yaghoubi that if she came into his shop again he would pull her pants down. He denied that Ms Yaghoubi complained of the conduct of Nader in her telephone call with him of 21 June 2009.
Nader Fedayee said that he went to Naracoorte with Mr Najib Fayazi on Sunday 21 June 2009 and stayed overnight. He said that he returned on Monday night at about 8.30 to 9pm and stayed that night at Mr Fayazi’s house. Nader Fedayee said that on Tuesday morning Qadir telephoned him and asked him to come to the shop because Qadir may have to go to the police station. Nader Fedayee said that Mr Fayazi drove him to the shop. Mr Fayazi left, and Nader Fedayee stayed until about 2pm.
Mr Fayazi gave evidence broadly consistent with Nader Fedayee’s account of the trip to Gaganis and the trip to Naracoorte. We reject Mr Fayazi’s evidence. His prior affidavit, sworn on 30 August 2012, which was in evidence,[23] did not mention the purported trip to Gaganis or the purported trip to Naracoorte. This, coupled with Mr Fayazi’s rather mocking manner in the witness box, left us with the clear impression that his evidence of knowing Ms Yaghoubi, and the purported Gaganis visit and the purported trip to Naracoorte on 21-22 June 2009 was simply untrue. We do not believe Nader Fedayee’s evidence in relation to the purported visit to Gaganis and the purported Naracoorte visit either. It may be that Najib Fayazi and he these two men went to Naracoorte together at some time, but we do not believe that such a trip occurred on 21-22 June 2009.
[23] Exhibit D21
It seems to us that all of the witnesses in this matter, with the exception of Ms Khalija Fedayee and Ms Holas, consciously or unconsciously tailored their evidence to a degree to suit their idea of what was required in the case in which they were giving evidence. Of the principal witnesses, we consider that Qadir Fedayee’s evidence is the most reliable.
It is clear that there are numerous issues between the parties which go well beyond this claim. There is no need for us to make findings in relation to all of the matters which were the subject of evidence before us. We will confine ourselves to considering the issues the subject of the complaint.
The Equal Opportunity Act 1984
The complainant claims that she was sexually harassed, contrary to s 87(6) of the Act, which provides:
It is unlawful for a person to subject another to sexual harassment in the course of –
(a) offering or supplying goods to that other person;
…
The Act provides, in s 87(9):
For the purposes of this section –
(a) a person sexually harasses another (the person harassed) if –
(i)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(ii)engages in other unwelcome conduct of a sexual nature in relation to the person harassed,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated; and
(b) conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing;
Ms Yaghoubi claims that Nader Fedayee sexually harassed her, in the course of managing the shop (and therefore offering goods to her), by making sexually suggestive remarks to her from time to time from early 2009 to June 2009 and by touching her on the shoulder and asking him to kiss her on 22 June 2009. The respondents’ case, in summary, is that a social relationship, as well as a shopkeeper/customer relationship, existed between them and the complainant, and that Ms Yaghoubi was pursuing Nader Fedayee with a view to forming a romantic relationship, which Nader Fedayee was resisting. The comments claimed by Ms Yaghoubi to have been made by Nader Fedayee are denied, and the incident in the shop on 22 June 2009 is also denied. The respondent’s case is that Nader Fedayee was not present in the shop on that day. The respondents’ case, to summarise, is that Ms Yaghoubi’s claim is an attempt to pay Nader Fedayee back for rejecting her advances and to pay Qadir Fedayee back for banning her from the shop for attempting to steal a jar of face cream. Ms Yaghoubi’s further motive, on the respondent’s case, is to provide an explanation for the presence of Mehdi Hosseini in the shop on the following day.
Ms Walker repeatedly characterised Nader Fedayee’s remarks and conduct towards Ms Yaghoubi as “flirtatious” and “romantic”. Conduct of that nature is not unlawful under the Act, unless it goes so far as to come within the definition of sexual harassment in s 87(a) of the Act.
In relation to the claim that Nader Fedayee sexually harassed Ms Yaghoubi by means of making comments of a sexual nature, we find that Ms Yaghoubi has not discharged the burden of proving, on the balance of probabilities, that those statements were made to her. Ms Yaghoubi’s evidence in this regard was simply not persuasive. Even allowing for the language difficulties in Court, (despite having an interpreter) her evidence contained inherent improbabilities and was unconvincing. Her demeanour in the witness box veered periodically from very meek to threatening. In any event, even if, contrary to our finding, the comments alleged were made to her by Nader Fedayee, they were made in the context of an acquaintance which went beyond shopkeeper/customer, and a reasonable person, having regard to all the circumstances, would not have anticipated that Ms Yaghoubi would be offended, humiliated or intimidated. In saying this, we bear in mind the inference in Ms Yaghoubi’s case that her experiences in Iran may have made her more vulnerable to offence, humiliation and intimidation. Many of the comments complained of were not sexual in nature and would not constitute sexual harassment.
Ms Yaghoubi further claimed that Nader Fedayee touched her on the shoulder and asked her to kiss him in the shop on 22 June 2009. In her statement of 22 December 2009, Ms Yaghoubi said that she was in the shop with friends “on one occasion” when Nader Fedayee asked to kiss her. She described these friends as “married friends” in her statement.[24] There was no mention of this alleged incident when she gave evidence. She gave an account, in evidence, only of an incident on 22 June 2009. In her statement, Ms Yaghoubi said that, on 22 June 2009, Nader Fedayee tried to drag her to the back of the shop. She made no such allegation in evidence, but said that her reaction to him was to hit him with her handbag. We are not satisfied on the balance of probabilities that the alleged incident on 22 June 2009 occurred at all. We believe that it is likely that it is a construction of events by Ms Yaghoubi to account for the presence of her son in the shop on 23 June 2009. Even if the incident occurred, however, it was in a context in which a reasonable person, having regard to all of the circumstances (including Ms Yaghoubi’s past), would not have anticipated that Ms Yaghoubi would be offended, humiliated or intimidated.
[24] Exhibit C16
As we understand it, Ms Yaghoubi claimed that Qadir Fedayee sexually harassed her in a phone call in the evening of 22 June 2009 by saying that he would pull her pants down if she came into the shop again. Qadir Fedayee denied making that statement to Ms Yaghoubi. We accept his evidence in that respect. We do not believe that he made the threat alleged by Ms Yaghoubi. We note that the accounts given by Ms Yaghoubi, Mr Ali and Mr Hosseini of the circumstances of Ms Yaghoubi’s side of that telephone call were inconsistent with each other.
In her submissions, Ms Walker relied on Ms Yaghoubi’s version of the phone call with Qadir Fedayee as victimisation. We doubt, even on Ms Yaghoubi’s version of events, that Qadir Fedayee’s part of that telephone call would constitute victimisation pursuant to s 86 of the Act. As we have said, we reject Ms Yaghoubi’s version of that phone call, so there is no factual basis at all for the allegation of victimisation under the Act.
We do not consider that any basis has been established on the evidence for an allegation of sexual discrimination pursuant to s 29 of the Act. Qadir Fedayee did not tell Ms Yaghoubi that she was banned from returning to the shop on the ground of her gender.
Ms Yaghoubi’s claim is dismissed.