Zhang v Kanellos - [2005] FMCA 111

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHANG v KANELLOS & ANOR

[2005] FMCA 111

HUMAN RIGHTS – Sexual harassment by a co-worker and sex discrimination in employment – allegations of bottom pinching and breast squeezing – consideration of whether the allegations proved on the available evidence – requirement to wear a mini skirt – absence of a proper comparator.

TORTS – Assault – unexpected physical contact does not constitute an assault.

EVIDENCE – Receipt of secondary evidence of security camera images of the alleged incident of breast squeezing, when the video record is unavailable.

Evidence Act 1995 (Cth), s.48
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.5, 14, 28A, 28B, 106

Beamish v Zheng [2004] FMCA 60
Bender v Bovis Lend Lease [2003] FMCA 277
McAlister v SEQ Aboriginal Corporation for Legal Service & Anor [2002] FMCA 109

Applicant:

SUSIE ZHANG

First Respondent:

Second Respondent:

CON KANELLOS

MOUNTBATTEN HOTEL PTY LIMITED

File No:

SYG1177 of 2004

Delivered on:

11 March 2005

Delivered at:

Sydney

Hearing dates:

9-10 February 2005

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr S Brennan

Solicitors for the Applicant:

Stephen Friend & Co

Counsel for the Respondent:

Ms C Ronalds, SC

Mr N Laing

Solicitors for the Respondent:

Australian Hotels Association

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1177 of 2004

SUSIE ZHANG

Applicant

And

CON KANELLOS

First Respondent

MOUNTBATTEN HOTEL PTY LIMITED

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

Susie Zhang is a former employee of the Mountbatten Hotel. Con Kanellos is also a former employee of the hotel who occupied a position in which he supervised Ms Zhang. Ms Zhang’s application is brought under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). The application is augmented by points of claim filed on 24 November 2004. Ms Zhang claims damages, interest, an apology and costs for alleged sexual harassment, sex discrimination in employment and assault. Ms Zhang alleges that Mr Kanellos breached the Sex Discrimination Act 1984 (Cth) (“the SDA”) in October and November 2003 and, on the basis of the same alleged facts, assaulted her. Ms Zhang claims that Mr Kanellos pinched her bottom on three occasions in the course of their work at the Mountbatten Hotel and that, on 7 November 2003, Mr Kanellos squeezed Ms Zhang’s right breast with his left hand after earlier threatening to grab her breast as a result of Ms Zhang’s failure to wear a mini skirt. Ms Zhang alleges that she was required to wear a mini skirt for the purposes of her employment in the gaming room of the Mountbatten Hotel. The obligation to wear a mini skirt is also put forward by Ms Zhang as a discriminatory act as a term or condition of her employment.
Ms Zhang claims that she was sexually harassed within the meaning of s.28A of the SDA. Although not expressly stated, the presentation of her case assumes an asserted breach of s.28B(1) of the SDA or s.28B(2) of the SDA. The respondent company is said to be liable pursuant to s.106(1) of the SDA. Vicarious liability is not disputed by the second respondent if the liability of the first respondent is established.
The claim of sex discrimination is said to be a claim of direct sex discrimination contrary to s.5 of the SDA by reason of a breach of ss.14(2)(a) and (d) of the SDA.

The evidence

Ms Zhang relies upon her affidavit made on 15 April 2004 (filed on 21 April 2004) and the documents annexed to her information sheet filed on the same day. Those documents are the complaint form she completed when she made a complaint to HREOC, the notice of termination of complaint issued on 25 March 2004 and a witness statement made by Ms Zhang to the NSW Police at City Central police station on 13 November 2003. Mr Brennan also tendered a letter (exhibit A1) from the Australian Hotels Association to his instructing solicitor dated 29 September 2004. The tender was limited to words in italics on the first page of the letter relating to video footage from the hotel viewed by the police and an attached NSW Police Service COPS computer print out relating to the incident reported to the police by Ms Zhang.
Ms Zhang deposes that she was employed at the Mountbatten Hotel as a casual food and beverage attendant from 12 April 2002 until 2 October 2003, and as a gaming room attendant afterwards until 9 November 2003, when she last attended work. She deposes that, at the time, Con Kanellos was co-manager of the hotel as well as licensee and day manager of the hotel on Mondays to Fridays. She deposes that, when she was transferred to the gaming room on 2 October 2003, she was asked by Con Kanellos to wear a mini skirt instead of pants or jeans as part of her work uniform. She deposes that when she was wearing a mini skirt on 24 October 2003 Mr Kanellos pinched her on the bottom three times. She did not say anything to Mr Kanellos at the time but deposes that she moved away from him quickly.
Ms Zhang deposes that she was rostered to work at 12.00pm on Friday, 7 November 2003 and when she was behind the bar on that day Mr Kanellos asked her:
Where is your mini skirt?
Ms Zhang replied:
It’s cold today and I didn’t want to wear it.
Ms Zhang deposes that Mr Kanellos then said:
I don’t want to send you home to get it.
Ms Zhang deposes, thinking he was joking by saying this, she replied:
If you stop pinching my butt I will start wearing a mini skirt.
Mr Kanellos did not respond. Ms Zhang deposes that another employee, Gwen Davies, was present during this conversation.
Ms Zhang deposes that, about an hour later, Mr Kanellos said:
There’s gonna be new rules for you, Susie, if you don’t wear a mini skirt next time I will grab your boobs.
Ms Zhang ignored this statement thinking it was a joke. Ms Zhang deposes that Gwen Davies was also present when Mr Kanellos made this statement.
Ms Zhang deposes that at 5.00pm she was sitting at a poker machine, number 5, located in the right corner of the gaming room, seated next to a friend Billy Cheng, who was sitting at machine number 4. Another friend of Billy’s was sitting at machine number 3. Ms Zhang deposes that about 10 minutes later Mr Kanellos came into the room and asked why the chairs were not fixed and the ashtrays not changed. Ms Zhang replied that she was going to do that. Ms Zhang deposes that at this time Mr Kanellos was standing in front of machine number 12. She walked over to him to fix the chairs and to change the ashtrays as she was instructed. She deposes that Mr Kanellos placed his right hand on her neck as she was walking past him on his right hand side, and continued to do so as she kept on walking. Ms Zhang deposes that as she walked in front of Mr Kanellos, his right hand was still placed on the back of her neck. She deposes that he put his right arm across her chest and subsequently also put his left arm across her chest and he then placed his left hand on her right breast and squeezed it once.
Ms Zhang deposes that she attempted to walk away but Mr Kanellos held on to her for about 10 seconds. He then ceased his actions and walked away at the same time saying words to the effect of, “lucky the camera can see only my back” and then, “if you don’t wear a skirt next time, this will happen to you again”. Ms Zhang deposes that, due to the presence of her friends, she pretended there was nothing wrong with Mr Kanellos’ actions. However, she says she felt really upset and offended and she sat next to her friends in silence. They left soon afterwards.
Ms Zhang deposes that around 6.00pm when another manager, Joshua Wells, arrived, she was crying and told him about the incident. On 8 November 2003 Ms Zhang advised the hotel she would be absent due to sickness. She deposes that the real reason was her distraught mental state. On Sunday, 9 November 2003 Ms Zhang attended work at 12.00pm. However, she deposes that she was still in a distraught mental state and left the workplace at 3.00pm, never to return.
Ms Zhang deposes that on Tuesday, 11 November 2003 she went to the Central police station to report the incident that had occurred on 7 November. She deposes as to her hurt and humiliation over that incident. Two weeks after leaving her employment at the hotel Ms Zhang obtained another job. She was unemployed for three weeks.
Mr Brennan sought to lead additional oral evidence in chief from Ms Zhang. I limited the oral evidence to evidence in reply to the respondents’ affidavits on the basis that orders made by the Court earlier in the proceedings had called for the filing of affidavit evidence. Nevertheless, I gave Mr Brennan reasonable latitude in leading that evidence in reply. Ms Zhang stated that only one other person, whom she knew as Chanelle, worked in the gaming room. She was permitted to wear pants and jeans. Ms Zhang stated that she did not wear a skirt to work before being asked to and she stopped wearing one because of the bottom pinching incidents. She stated that all employees at the hotel wore a singlet top issued by the hotel. Some staff also wore a long sleeved shirt bearing a Heinekin beer logo but she was not given one. Ms Zhang described the layout of the gaming room in which she worked. She disputed the assertions made by Mr Con Kanellos in paragraphs 18 and 19 of his affidavit.
In cross-examination, Ms Zhang was asked questions about the layout of the gaming room and its clientele. She stated that about 80 per cent of the patrons of the gaming room were Chinese, in contrast to patrons of the general bar area who were mostly backpackers and non-Chinese local workers. Ms Zhang was shown a plan of the hotel and of the gaming room. She accepted that these were accurate. The plan of the hotel is exhibit R2 and that of the gaming room is exhibit R3. On a copy of the plan of the gaming room Ms Zhang marked the position of her movement during the incident on 7 November 2003 and the position of Ms Kanellos. This became exhibit R4.
Ms Zhang confirmed that she had agreed to transfer from the general bar area to the gaming room although she denied that she had sought the transfer. She agreed that it was made clear to her that it was part of her duties to help attract customers to the gaming room. She accepted that Mr Kanellos wanted a Chinese language speaker for the job. She agreed that she was happy to get tips from customers in the gaming room and that this might have been mentioned by Mr Kanellos but she denied that she got more tips in the gaming room than she had received in the general bar area. Ms Zhang insisted that she was only asked to wear a mini skirt after she had transferred to the gaming room. She agreed that she owned skirts, including short skirts, and that she had worn a mini skirt socially. She agreed that she had worn an apron in the general bar area but denied that she wore it in the gaming room.
Ms Zhang was asked about her complaint to HREOC. She confirmed that it had largely been prepared with the assistance of her solicitor. She agreed that she had not included in that complaint a reference to bottom pinching. She said she had forgotten to mention it. She denied inventing the allegation of bottom pinching. She also agreed that her statement to the police did not contain a direct allegation of bottom pinching (although she had asserted that she had said to Mr Kanellos that she would recommence wearing her mini skirt if he stopped pinching her bottom). Ms Zhang was uncertain under cross‑examination how many incidents of bottom pinching there had been. She could not remember how many incidents there had been on 24 October 2003.
Ms Zhang was asked about the incident on 7 November 2003. She confirmed the details set out in her affidavit. She denied making up the story of Mr Kanellos squeezing her breast. When pressed on specific details relating to the incident, Ms Zhang expressed some uncertainty and said that she was confused. She said that she did not remember because she did not want to remember. She agreed that she had made her statement to the police after the police had viewed a video tape of vision from security cameras in the gaming room. She had been told by the police that the video footage did not support her claim prior to completing her statement. She denied making up Mr Kanellos’ alleged words to the effect that it was lucky that the cameras could not see what he was doing.
In response to a question from me, Ms Zhang agreed that the alleged bottom pinching incidents were not in themselves important enough to warrant a complaint to HREOC or the police. In response to a question in re-examination from Mr Brennan, Ms Zhang stated that her main concern was the alleged incident of sexual harassment on 7 November 2003.
The respondents rely upon the affidavits of Con Kanellos made on 6 December 2004 (filed on the same day) and 4 February 2005 (filed on the same day). They also rely upon the affidavits of his brother George Kanellos made on 13 January 2005 (filed on 21 January 2005), Gwen Davies made on 7 February 2005 (filed on the same day), Joshua Wells made on 9 December 2004 (filed on the same day) and Terri Anne Rose made on 9 December 2004 (filed on the same day).
I had anticipated being asked to view the video footage which had been seen by the NSW Police following the incident on 7 November 2003. On the first day of the hearing, Ms Ronalds told me that the video could no longer be found. She tendered (exhibit R1) correspondence from the NSW Police Service detailing the attempts by the police to find the video. This correspondence was sent in response to a subpoena issued at the instigation of the respondents. I was also told that the original digital vision recording on the hotel camera system had long since been overwritten and the hotel did not have any copy of the relevant video footage, apart from that provided to the NSW Police Service, which could not now be found. On the basis of this, I accepted that the video was a document which was unavailable. I agreed to receive affidavit evidence from the respondents’ witnesses of what they recalled seeing on the video, pursuant to s.48(4)(b) of the Evidence Act 1995 (Cth).
Two other documents were tendered by Ms Ronalds on behalf of the respondents. Exhibit R5 is a bundle of documents relating to a Heineken International promotion for the Rugby World Cup in 2003. Exhibit R6 is an article from the December 2002 issue of the FHM magazine, being an article about the applicant with six photographs of the applicant wearing a bikini and what purports to be an interview with her by a reporter on a range of subjects, including subjects of a sexual nature.
In his affidavit, Con Kanellos gives details of his employment history and that of the applicant. He deposes that, since 9 November 2003, the hotel had attempted to contact Ms Zhang by telephone to offer her more employment but these attempts to contact her were not successful.
Con Kanellos deposes that when Ms Zhang arrived for work around midday on 7 November 2003 she was dressed in a pair of jeans and a Mountbatten Hotel singlet top. He asked the applicant:
Where is your skirt?
Ms Zhang replied:
It’s cold today and I don’t want to wear a skirt.
Mr Kanellos said:
Can you go home and get it?
to which Ms Zhang replied:
It’s in the wash, I can’t wear it.
Mr Kanellos deposes that he said:
Can you make sure that you wear it on your next shift?
Mr Kanellos deposes that Ms Zhang’s job involved looking after the patrons in the gaming room by talking to them, getting them drinks and helping them with payouts. He deposes that employees working in the gaming room were expected to wear short skirts. Employees in other areas of the hotel were not required to wear a short skirt and could wear jeans instead. He deposes that an employee in the gaming room had the possibility of earning substantial tips from successful punters.
Mr Kanellos deposes that he next spoke to Ms Zhang at around 5.20pm that afternoon in the gaming room. He deposes that there were three patrons in the gaming room at the time. Ms Zhang was speaking to one of them and he asked her to come to him. Ms Zhang walked over to Mr Kanellos who asked her to make sure to clean the ashtrays out regularly, keep the chairs tidy and just keep the room more presentable. Mr Kanellos deposes that:
As we got to the end of bank of machines, the applicant started to collect the ashtrays by which stage she was in front of me. I reached in front of me and gently squeezed the top of her right shoulder with my right hand. As I did this, the applicant turned around and I made a joke to lighten the mood as we continued to walk towards the gaming room exit. The applicant laughed at the joke.
Con Kanellos deposes about his dealings with the NSW Police on 11 November 2003 and also with Joshua Wells concerning the incident on 7 November 2003. Mr Kanellos denies having any social relationship with Ms Zhang. He denies any previous complaint against him of sexual harassment by Ms Zhang or anyone else. In his second affidavit, Con Kanellos denies pinching Ms Zhang on the bottom at any time. He denies the words attributed to him by Ms Zhang in her affidavit.
In cross-examination, Con Kanellos confirmed that he had no relationship with Ms Zhang and that they never socialised outside the workplace. Mr Kanellos could not recall the joke that he deposes he made to “lighten the mood” on 7 November 2003. He insisted that he only placed one hand on top of Ms Zhang’s shoulder. He admitted that he did not have a direct recollection but relies on what he remembers seeing on the video. He admitted that he felt “better” about the incident after seeing the video footage. He ventured the opinion that Ms Zhang had made the allegation of sexual harassment against him to “get back at him” for making her wear skirts. He stated that he was slightly angry with Ms Zhang when he came into the gaming room on the afternoon of 7 November and found it untidy. He denied that he was angry on this day because Ms Zhang was not wearing her mini skirt. He stated that she had failed to wear the skirt several times.
Mr Kanellos said that in November 2003 the hotel had 10-12 staff, including eight beer staff and managers. There were only two employees in the gaming room, both female. Mr Kanellos denied that Ms Zhang had been denied a Heineken long sleeved shirt. He said that these were simply left on the bar as part of the Heineken World Cup promotion for staff to take as they wished. They were not part of the hotel uniform. He admitted that the other employee in the gaming room, Chanelle, was not required to wear a mini skirt. She was asked to wear dresses, skirts or sometimes trousers. Mr Kanellos stated that “we” had an agreement with Ms Zhang that she would wear short skirts.
In response to questions from me, Mr Kanellos confirmed that most of the customers in the gaming room were Chinese. Chanelle is also of Chinese ethnicity. He stated that most of the customers in the gaming room were Chinese males. He disagreed that that was why both the staff in the gaming room were female.
In re-examination Mr Kanellos stated that the only uniform issued to staff was the hotel singlet top and an apron. Staff in the gaming room were not required to wear the apron.
Terri Rose deposes that she is a former NSW police officer who was a member of the police force between 30 August 2002 to April 2004. She deposes as to the allegation of indecent assault made by Ms Zhang to the NSW police on 11 November 2003. Ms Rose partially completed an incident report, then sent two unformed police officers to the hotel to view and retrieve any available security video footage. Ms Rose deposes that she viewed the video that evening and that she saw the following:
A tall man with dark hair of Mediterranean appearance standing next to a shorter female Asian who appeared to be the applicant. They were in a corner of a room which matched the description of that room given to me by the applicant at the time she filled in the incident report. I saw them both looking at a poker machine & he was standing next to her on her left with his right arm on her right shoulder for a few seconds. I saw them both turn around and they were both smiling as though they were sharing a joke.

Ms Rose deposes that she did not see any incident on that video that gave her any cause for concern. She did not see any assault take place. She deposes as to a conversation she had with the applicant on 13 November 2003. She deposes that the applicant stated that she would not pursue the criminal matter any further, that she had a lawyer and that if the matter went further it would be a civil action. Annexed to Ms Rose’s affidavit is a copy of the witness statement made by Ms Zhang, as well as a copy of the NSW Police Service COPS print out.
In cross-examination, Ms Rose denied that Ms Zhang was upset when she was first interviewed. She stated that on the video she viewed she could only see the backs of the couple when the man’s arm rested on the shoulder of the female. Ms Rose was asked why she had referred to “arms” (plural) in the COPS report. She said that this was a mistake and only one arm was involved. She confirmed that when the couple turned around they were smiling. They appeared to be talking, although there was no sound on the video.
I asked Ms Rose to demonstrate with the assistance of a volunteer the position of the male person’s arm in relation to the female on the video. She demonstrated that the male’s right arm was outstretched over the right shoulder of the female about to the position of the elbow on top of the shoulder. The forearm and hand were out of view when viewed from the rear.
Joshua Wells deposes that since 6 September 2004 he has been the licensee of the Mountbatten Hotel. On 7 November 2003 he was employed as the duty manager. He arrived at 6.00pm on that day to start work. He deposes that on arrival he noticed Ms Zhang in tears and spoke to her. He deposes that Ms Zhang had said:
I was in the gaming room with Con, mucking around, and he touched me on the boobs.
He sent Ms Zhang home at about 6.15pm as she was not in any condition to work efficiently. Mr Wells deposes that after Ms Zhang left the hotel he went to the office to view the security video. There are three security cameras in the gaming room. He looked at the vision from all three camera angles. He deposes:
On the video I saw the first respondent with the applicant in the gaming room. I saw them mucking around and smiling. I did not see anything on the videos that showed Con touching her breasts or that gave me any cause for concern.
Under cross-examination Mr Wells said that Ms Zhang was usually very stable but that she was upset on 7 November. He confirmed that he had approached her for an explanation rather than her approaching him. Mr Wells stated that vision from the incident was available from two of the three cameras in the gaming room. This conflicted with the evidence of Ms Rose and Mr Kanellos. Mr Wells also placed Mr Kanellos and Ms Zhang in the gaming room on exhibit R3 in a completely different position to that asserted by both Ms Zhang and Mr Kanellos. On their evidence, they were in a position that could only be viewed by one camera. Mr Wells stated that he could see vision from two cameras which showed both a front view and a back view. He stated that on the front view he could see Con Kanellos with one arm over Ms Zhang’s shoulder on to the opposite shoulder, just below the shoulder.
Gwenlli Davies deposes that she was employed as a casual food and beverage attendant at the Mountbatten Hotel in October and November 2003. She refers to Ms Zhang’s affidavit and recalls part of the conversation referred to in paragraph 10 of that affidavit. She deposes that she heard Mr Kanellos say to Ms Zhang, “Where is your mini skirt?”. She heard Ms Zhang reply, “It’s cold today and I didn’t want to wear it”. She does not recall Mr Kanellos saying, “I don’t want to send you home to get it”. She did not hear Ms Zhang say, “If you stop pinching my butt I will start wearing a mini skirt”.
In relation to paragraph 11 of Ms Zhang’s affidavit, Ms Davies did not hear Mr Kanellos say, “There’s gonna be new rules for you, Susie, if you don’t wear a mini skirt next time I will grab your boobs”.
Ms Davies confirmed her affidavit evidence under cross-examination.
Mr George Kanellos deposes that he was employed as the duty manager of the Mountbatten Hotel from August 2001 until November 2004. He left Australia on 16 November 2004 for an extended visit to the USA. He deposes as to the attendance of the police at the hotel on 11 November 2003. He deposes that two police officers asked for and took from the hotel video footage from the security system. He deposes that as requested by the police, he wound back the video footage to 5.00pm and played it until a scene was reached involving Mr Kanellos and Ms Zhang. The time indicated on the video was somewhere between 5.15pm and 5.25pm. Mr Kanellos and the police officers viewed the footage a few times. He deposes that it appeared that some kind of contact had been made between Ms Zhang and Mr Con Kanellos but that when Ms Zhang turned around to face the camera she was smiling and did not look upset or distressed.
Mr George Kanellos was cross-examined by telephone from the United States. He confirmed that the hotel did not keep a copy of the video which was given to the police. He deposed that the digital footage had been downloaded on to a video tape. This conflicted with the evidence of Ms Rose who stated that the footage had been placed on to a small computer disk. I asked Mr Kanellos how he determined what part of the recording to record on the video tape. He said he had recorded what he had been directed to by the police. I asked Mr Kanellos what he had seen on the security recording. He said that he had seen a rear view of Con Kanellos and Susie Zhang and he had seen Con put both his hands on both of Ms Zhang’s shoulders. He insisted that only Con’s hands had been placed on Ms Zhang’s shoulders. He stated that video image was only available from one camera in the area of the gaming room where Con Kanellos and Ms Zhang both stated that they had been. Mr Kanellos stated that at the relevant time there were only three gaming machines in the area of the gaming room where the incident took place and that the incident took place close to machine number 11. He stated that Con and Ms Zhang initially walked away from the camera towards the location of machine number 11 and then turned and returned towards the camera. He stated that he could see Ms Zhang was smiling.

The legislation

Section 46PO of the HREOC Act provides as follows:
(1)If:
(a)a complaint has been terminated by the President under section 46PE or 46PH; and
(b)the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(2)The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(3)The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)an order requiring a respondent to employ or re-employ an applicant;
(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f)an order declaring that it would be inappropriate for any further action to be taken in the matter.
(5)In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 , subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976 ).
(6)The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.
(7)The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).
(8)The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.
Section 5(1) of the SDA provides as follows:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a)the sex of the aggrieved person;
(b)a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
Section 14(2) of the SDA provides as follows:
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:
(a)in the terms or conditions of employment that the employer affords the employee;
(b)by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
Section 28A of the SDA provides as follows:
(1)For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b)engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2)In this section:
"conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
Sections 28B(1) and (2) of the SDA provide as follows:
(1) It is unlawful for a person to sexually harass:
(a) an employee of the person; or
(b)a person who is seeking to become an employee of the person.
(2)It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

Submissions

Mr Brennan submits that the Court has jurisdiction to consider each of the applicant’s claims. He submits that the Court has accrued jurisdiction to consider the claim of the tort of assault on the basis that it arises out of the same facts as the primary sexual harassment claim. He submits that the Court has jurisdiction to consider the claim of bottom pinching both as a separate series of incidents constituting sexual harassment for the purposes of the SDA and also as incidents supporting the primary allegation of sexual harassment by squeezing Ms Zhang’s breast. Mr Brennan referred me to the decision of this Court in Bender v Bovis Lend Lease [2003] FMCA 277. Mr Brennan submits that the primary claim of sexual harassment by squeezing the applicant’s breast has been established on the facts and clearly constitutes sexual harassment. He submits that significant facts are not disputed. There was physical contact between Ms Zhang and Mr Con Kanellos on the afternoon of 7 November 2003 and at least one of his arms reached over Ms Zhang’s right shoulder from the back with sufficient extension to permit him to reach the breast. It is established that Ms Zhang was very upset after the incident and was sent home. It is established that after returning to work briefly two days later she left the workplace, never to return. She made a complaint to the NSW Police of sexual assault. She exhibited disgust at the behaviour she experienced.
Mr Brennan invited me to draw an inference that the video footage of the incident would not have assisted the respondents. He expressed concern about the circumstances in which the existing video tape or disk was apparently lost and notes that it was open to the respondents to protect themselves by making and keeping a further copy of the footage. He submits that the most reliable account of what appears on the video footage is the contemporaneous report prepared by Ms Rose, forming part of the COPS database print out. He submits that the recollections of the respondents’ witnesses, in particular Joshua Wells, about what they saw on the video footage are not reliable.
Mr Brennan presses the applicant’s claim of direct sex discrimination in employment by being required to wear a mini skirt. He submits that this treated Ms Zhang as sex object and she was treated less favourably than a comparable employee would have been in the same or similar circumstances. He submits that this issue was mentioned in the applicant’s complaint to HREOC and in the termination letter and thus properly forms part of the proceedings before the Court.
Ms Ronalds submits that the contest between the parties relates to the facts rather than the law, with the possible exception of jurisdictional issues. She submits that:
a)there was no incident on 24 October 2003 of bottom pinching by Mr Con Kanellos of the applicant or at any other time before or after that date;
b)there was no assault or beating of the applicant by Mr Con Kanellos on 24 October 2003 or at any other time before or after that date;
c)there was no inappropriate touching of Ms Zhang by Mr Con Kanellos on 7 November 2003 or at any other time before or after that date;
d)there was no threat or implied threat by Mr Con Kanellos to Ms Zhang on 7 November 2003 about her style of dress or of any consequences or at any other time before or after that date;
e)there was no act of sexual harassment at any time;
f)there was no act of sex discrimination at any time;
g)requesting the applicant to wear a mini skirt was not an act of sex discrimination;
h)the Mountbatten Hotel is not vicariously liable for any actions of Mr Con Kanellos because Mr Con Kanellos is not liable (vicarious liable is not disputed if Mr Con Kanellos is found liable);
i)there is no sustainable basis for any claim of economic loss or any other damages or any aggravated damages by Ms Zhang;
j)the proceedings should be dismissed with costs.
Ms Ronalds submits that the allegation of bottom pinching is not properly before the Court as a cause of action as it did not form part of the complaint made by Ms Zhang to HREOC on 27 November 2003. She submits that, in any event, the allegation of bottom pinching cannot be substantiated on the evidence. She submits that the allegations of sexual harassment are serious matters that should be proved to the Briginshaw standard[1]. Ms Ronalds submits that the pinching of the applicant’s bottom as alleged cannot constitute either assault or beating. There is no evidence of any threat. The concept of “beating” is not one recognised by the law of tort and there is no allegation of battery.
[1] Beamish v Zheng [2004] FMCA 60 at [14]
As to the incident on 7 November 2004, Ms Ronalds concedes that if it could be proved that Mr Con Kanellos squeezed Ms Zhang’s breast then sexual harassment for the purposes of the SDA would be established. She submits, however, that the squeezing of the breast has not been proved. The available evidence merely indicates that Con Kanellos placed his right arm on Ms Zhang’s right shoulder for a few seconds and that they shared a joke. There is no evidence of assault. Ms Ronalds submits that the respondents did not carry any onus to come up with any alternative explanation of the incident on 7 November 2003. The applicant’s claim is either established or it is not. Ms Ronalds submits that it is not open to the Court to decide the case on some alternative basis as that would be procedurally unfair, the respondents having had no opportunity to respond to the alternative allegation.
Ms Ronalds submits that Ms Zhang was a poor witness and that her evidence should not be accepted. She submits that the evidence of the respondents should be accepted as establishing that there was no squeezing of the breast and hence no sexual harassment or assault. She invited me to draw an inference that the evidence of Billy Cheng and his friend, who were present in the gaming room when the incident occurred, would not have assisted the applicant. Neither was called to give evidence.
Ms Ronalds submits that I should reject the allegation of a threat having been made by Mr Con Kanellos on or about 7 November 2003 to the effect that he would grab Ms Zhang’s breast if she failed to wear a mini skirt. The only evidence of a threat is that of Ms Zhang herself. Ms Zhang alleged that Ms Davies was present and heard the threat but Ms Davies did not corroborate it. Words were attributed to Mr Kanellos by Ms Zhang that he denied using and he was not challenged on that in cross-examination.
Ms Ronalds submits that the claim of sex discrimination in employment by being required to wear a mini skirt must be rejected. She notes that the only comparator available is another female. She submits that Ms Zhang and Mr Con Kanellos had an agreement that Ms Zhang would wear a skirt and there was nothing remarkable about it. In addition, on her own evidence, Ms Zhang only wore a mini skirt on two or three occasions.
Finally, Ms Ronalds submits that there is no evidence to support the claim for aggravated damages and inadequate evidence to support the claim for general damages.
The respondents seek the opportunity to be heard on costs.

Reasoning

The sex discrimination claim

Ms Zhang’s claim of sex discrimination in employment by reason of being required to wear a mini skirt suffers from insuperable difficulties. The claim asserts that Ms Zhang was treated less favourably than other employees but no comparator is offered. The only direct comparator available on the evidence is another woman, “Chanelle”. Mr Kanellos admitted in cross-examination that Chanelle was not required to wear a mini skirt, notwithstanding his affidavit evidence that “all” employees in the gaming area were required to wear short skirts. Mr Kanellos stated that Chanelle was asked to wear dresses, skirts or sometimes trousers. He stated that, in contrast with Chanelle, the hotel had an agreement with Ms Zhang that she would wear short skirts. Mr Kanellos’ oral evidence on this point was generally consistent with that of Ms Zhang and I accept it.

Ms Zhang complains about the obligation to wear short skirts upon the basis that this treated her as a “sex object”. However, this confuses sex discrimination with sexual discrimination. Ms Zhang must establish that she was treated less favourably than a comparable employee would have been in the same or similar circumstances by reason of her sex. It does not avail her anything to complain that her employer took advantage of her sexuality. Obviously, Ms Zhang was not treated differently from Chanelle because she was a woman. They are both women. There were no other employees in the gaming area at the hotel against whom Ms Zhang’s treatment might be compared. The hotel at the relevant time did have male employees but they were in the general bar area. The duties of staff in the general bar area were different to those of staff in the gaming area and the different clothing requirements reflected those different duties. The hotel required staff in the gaming area who would look attractive and would present a more sophisticate image to that of staff in the general bar area. Even on the basis of a hypothetical comparison, there is no evidence that a male employee, if there had been one in the gaming room, would have been treated any differently.
Secondly, I accept Mr Con Kanellos’ evidence that the obligation on Ms Zhang to wear short skirts came from a consensual agreement. It was not imposed. Ms Zhang was given the option of working in the gaming area and was requested to wear short skirts. She accepted the opportunity and agreed to the clothing condition. Ms Zhang was not asked to do anything that she was unwilling to do outside the work place. She admitted owning short skirts and wearing them socially. Further, exhibit R6 shows that Ms Zhang was quite willing to display herself in a sexually alluring and revealing way.
Finally, the obligation on Ms Zhang to wear short skirts was not vigorously enforced. On her own evidence, Ms Zhang seldom complied with it. On the evidence of Con Kanellos, she failed to comply with it on numerous occasions. The evidence indicates that Ms Zhang’s non compliance was the source of some friction between her and Con Kanellos but, apart from the alleged sexual harassment, Ms Zhang suffered no detriment by reason of her non compliance. The allegation of sexual harassment should be considered on its own merits.
I find that Ms Zhang was a party to a voluntary agreement that she wear short skirts in the workplace and that this formed part of her terms or conditions of employment. I find that this term or condition of Ms Zhang’s employment was not discriminatory by reason of her sex. I am not persuaded that Ms Zhang was treated less favourably than a male employee would have been in circumstances that were the same or not materially different.
The sex discrimination claim fails.

The claim of sexual harassment

Section 28B(2) of the SDA renders it unlawful for an employee to sexually harass a fellow employee. Section 28B(6) makes it unlawful for an employee to do so at a workplace. “Sexual harassment” is defined by s.28A(1) of the SDA. A person sexually harasses another person if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours to the person harassed, or 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 of the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
Bottom pinching and the squeezing of a breast is clearly conduct of a sexual nature. It is not necessarily the case that bottom pinching and the squeezing of a breast is unwelcome conduct. That depends on the circumstances. The circumstances would also determine whether bottom pinching or the squeezing of a breast would cause a reasonable person to anticipate that the subject of the conduct would be offended, humiliated or intimidated. In order to resolve this claim it is necessary for me to determine whether the conduct alleged by Ms Zhang actually occurred, and if it did occur, the circumstances in which it occurred. It is generally accepted that allegations of the kind made by Ms Zhang should be proved to the Briginshaw standard: McAlister v SEQ Aboriginal Corporation for Legal Service & Anor [2002] FMCA 109 at [39]. I proceed on that basis. Given the seriousness of the allegations against Con Kanellos I must have a high degree of satisfaction that they are true. For the following reasons, I do not have that degree of satisfaction.
First, the evidence of Ms Zhang was unsatisfactory. Her oral evidence was confused and at times contradictory. She was unable to recall important details of the events on 7 November 2003. Her affidavit evidence has the appearance of having been embellished in order to bolster her claims. This is particularly so in relation to the words attributed to Mr Kanellos by Ms Zhang. In her affidavit evidence Ms Zhang asserted that critical conversations could be corroborated by Ms Davies. Ms Zhang did not call her as a witness. She was called by the respondents and her evidence failed to provide the corroboration that Ms Zhang asserted was available. Further, Ms Zhang’s claim that Mr Kanellos had said, at the time he squeezed her breast, that it was lucky the cameras could not see what he was doing only emerged after the police told Ms Zhang that the security camera footage did not corroborate her claims as it showed only a reverse view. In addition, on Ms Zhang’s account there were at least two independent witnesses to the incident of alleged breast squeezing who were known to Ms Zhang and who should have been able to provide relevant and admissible evidence. Ms Zhang did not call them. I draw an inference that their evidence would not have assisted her.
Ms Zhang did not raise her allegation of bottom pinching in her complaint to HREOC. In the circumstances, I do not consider that it is open to me to deal with it as a separate allegation of sexual harassment. I consider that it is open to me to deal with the alleged bottom pinching as a series of alleged events leading up to and putting in context the alleged incident of breast squeezing. In other words, Ms Zhang is limited in these proceedings to the allegation of sexual harassment by reference to the alleged breast squeezing incident on 7 November 2003. That is the complaint that she made to HREOC. The alleged bottom pinching can only be used in these proceedings to support the allegation of breast squeezing. Ms Zhang herself conceded in oral evidence that the alleged incidents of bottom pinching were not so serious as to warrant a complaint to HREOC in themselves. They are only relevant in order to put the incident of breast squeezing in context. Ms Zhang made no direct complaint to the police about bottom pinching, and only referred to it as an asserted item of conversation in order to put the alleged incident of breast squeezing in context.
Ms Zhang asserted that several incidents of bottom pinching had been seen by others but she was unable to present any witness who could corroborate any such incident. I am disinclined to accept Ms Zhang’s version of conversations with Mr Con Kanellos in which she and he allegedly referred to bottom pinching. Having regard, in particular, to the evidence of Ms Davies I have formed the view that Ms Zhang has embellished her affidavit evidence as to those conversations in order to bolster her claims. I am not satisfied that any incident of bottom pinching actually occurred.
As to the alleged incident of breast squeezing on 7 November 2003, it is common ground that there was physical contact between Con Kanellos and Ms Zhang on that day. Ms Zhang regarded the incident as serious enough to report to the NSW Police and the evidence of Mr Wells establishes that Ms Zhang was genuinely upset at around 6.00pm on 7 November 2003. Ms Zhang only returned to the workplace for a short time two days after the incident. Ms Zhang was a highly regarded employee at the hotel. Indeed, Con Kanellos made several attempts to contact Ms Zhang after 9 November 2003 in order to offer her more work. There was no obvious reason, apart from the incident on 7 November 2003, for Ms Zhang to leave the workplace.
This case is remarkable for the fact that each witness who was a party to the incident on 7 November 2003 or who saw the security images gave a different account of what they saw. If that establishes anything, it establishes the unreliability of human memory. Joshua Wells impressed me as a person who was anxious to tell the truth but his recollection is unreliable. He is almost certainly wrong in his placement of Con Kanellos and Ms Zhang in the gaming room at the time of the incident and he is probably wrong in his recollection of seeing a front view as well as a back view. Even if he did see a front view, his affidavit evidence is that he did not see anything that showed Con Kanellos touching either of Ms Zhang’s breasts. He did not depart from that evidence. Likewise, the evidence of Mr George Kanellos was unreliable as to his recollections of what he saw on the video footage. He is the only witness (apart from Ms Zhang herself) who recalls seeing Con Kanellos use two hands. The evidence of Con Kanellos about the contact that occurred between him and Ms Zhang was self-serving and unreliable. No one supported his claim that he merely gave the top of Ms Zhang’s right shoulder a “gentle squeeze” with his right hand.
The most reliable evidence as to what occurred on 7 November 2003 is that of Ms Rose. She was an independent and objective observer of the security camera footage. She had a professional interest at the time in determining what had occurred. The evidence of Ms Rose, which I accept, was inconclusive. The contact she saw was limited to a “few seconds” and she only had a rear view. In her re-enactment of what she saw Con Kanellos had his right arm over Ms Zhang’s right shoulder with his forearm and hand out of view. It would have been possible for him in that position to have reached her left breast. On Ms Rose’s evidence, Con Kanellos did not squeeze Ms Zhang’s right breast with his left hand as alleged by Ms Zhang. Only one arm was involved and it was the right arm over the right shoulder. What the right hand was doing is not clear.
What is clear is that immediately afterwards the couple turned and faced the camera. Both were smiling and talking. Ms Rose’s evidence is firm on this point and I accept it. It is corroborated by the evidence of Mr George Kanellos and Joshua Wells who saw the same footage. It was that that persuaded the police to take no further action. That was also what persuaded Mr George Kanellos and Mr Wells that nothing of concern had occurred.
Ms Zhang seeks to explain her appearance at the time on the basis that she did not wish to betray her true feelings in front of her friends.

I find this odd. If Ms Zhang did not want to disclose her true feelings to her friends, why did she disclose them less than an hour later to Mr Wells? Secondly, why did Ms Zhang feel that it was necessary for her to effect a pretence of pleasure at the incident? She could simply have not reacted if she wished to conceal her feelings.
Something happened on 7 November 2003 to upset Ms Zhang. Something happened which caused her to abandon her employment. Given the unsatisfactory evidence of Ms Zhang and the inconclusive and contradictory evidence of the respondent’s witnesses, I cannot be sure what happened. I am not persuaded that the incident of breast squeezing as alleged by Ms Zhang actually occurred. There are other possible explanations of what occurred but they are speculative and do not provide a proper foundation for findings of fact. I do not have the high degree of satisfaction required for me to make a finding of sexual harassment against Mr Con Kanellos. Accordingly, the claim of sexual harassment fails against both respondents.

The assault claim

The claim of assault and “beating” also fails. The tort of battery has not been pleaded but, even if it had been, the evidence does not support a finding of harmful or offensive contact with Ms Zhang’s body. Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive conduct[2]. I have rejected the words and actions attributed to Con Kanellos by Ms Zhang that would be necessary to establish that tort. Further, I find that the contact that did occur between Mr Con Kanellos and Ms Zhang was unexpected by her, and so cannot support a claim of assault.
[2] The Law of Torts, 9^th Edition, Law Book Co, p31
In accordance with Ms Ronalds’ request, I will hear the parties as to costs.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 11 March 2005