Zheng v Beamish
[2004] FMCA 61
•19 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHENG v BEAMISH | [2004] FMCA 61 |
| HUMAN RIGHTS – Racial discrimination – alleged racist comments and gestures – claim rejected on the evidence. |
Evidence Act 1995 (Cth), s.64
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Racial Discrimination Act 1975 (Cth), s.18C
Sex Discrimination Act 1984 (Cth), ss.28A, 28B
Leslie v Graham [2002] FCA 32
McAllister v SEQ Aboriginal Corp for Legal Services & Anor [2002] FMCA 109
Wattle v Kirkland [2002] FMCA 135
| Applicant: | ZHONG HAI ZHENG |
| Respondent: | JEWELS LOUISE BEAMISH |
| File No: | SZ2566 of 2003 |
| Delivered on: | 19 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 10 February 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr P Moorhouse |
| Solicitors for the Respondent: | CBD Law |
ORDERS
The application is dismissed with costs.
The Court certifies, for the purposes of rule 21.15 of the Federal Magistrates Court Rules 2001 (Cth), that it was reasonable for Ms Beamish to retain counsel for the hearing on 10 February 2004.
Settlement and entry of these orders may be effected pursuant to Order 36 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ2566 of 2003
| ZHONG HAI ZHENG |
Applicant
And
| JEWELS LOUISE BEAMISH |
Respondent
REASONS FOR JUDGMENT
Introduction and background
Jewels Louise Beamish and Zhong Hai Zheng are former employees of a company called Pioneer Poultry Pty Ltd which operates a chicken meat processing factory in northern Sydney. As a result of their experiences in the course of that employment they have brought applications against one another under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). Ms Beamish filed an application on 18 March 2003 seeking damages for sexual harassment. At the commencement of the trial on 10 February 2004 this was amended to be an application seeking a declaration that Mr Zheng committed sexual harassment contrary to s.28B of the Sex Discrimination Act 1984 (Cth) (“the SDA”), an order requiring him to apologise, compensation of $10,000 (less an amount already received by Ms Beamish in relation to her cause of action), plus costs and interest. It transpired during the course of the hearing that Ms Beamish has already received $5,000 from Pioneer Poultry following the conciliation of her complaint against her employer before HREOC.
In his application filed on 26 November 2003 Mr Zheng seeks damages for “racial harassment” plus costs. This was unparticularised but the evidence filed in support asserted that Ms Beamish had behaved in an offensive manner towards Mr Zheng because of his race. Mr Zheng was initially legally represented, but at the trial of this matter he was self represented. I ruled that his claim was a claim of an asserted breach of s.18C of the Racial Discrimination Act 1975 (Cth) (“the RDA”).
Ms Beamish’s complaint against Mr Zheng was terminated by the President of HREOC on 13 February 2003: exhibit A2. This was on the basis that there was no reasonable prospect of conciliation. Ms Beamish had complained to HREOC that during several months of her employment at Pioneer Poultry Mr Zheng sexually harassed her, commencing in late April 2001. She complained that Mr Zheng asked her if she was getting enough sex, made the comment “jiggy jiggy”, gave her compliments, tried to touch her breasts and offered her money for sex. She ceased work on 25 January 2002, allegedly on the basis that she was suffering physically and mentally. The same allegations are made against Mr Zheng in these proceedings.
Mr Zheng’s complaint to HREOC was terminated by a delegate of the President of 2 October 2003 as there was no prospect of conciliation. Mr Zheng had complained that during his employment at Pioneer Poultry he was subjected to racial taunts and derogatory behaviour by Ms Beamish and other colleagues. In particular, he claimed that Ms Beamish patted him on the head, teased him because his English was poor, threw meatballs and other objects at him and called him gay. He alleged that Ms Beamish lodged a complaint of sexual harassment against him because of his race. He alleged that he was dismissed from his employment because of these allegations of sexual harassment. Pioneer Poultry had confirmed to HREOC that Mr Zheng’s employment had been terminated and noted that proceedings had been instituted by him the NSW Industrial Relations Commission. Those proceedings had been resolved and a deed of release entered into. Mr Zheng withdrew his complaint against Pioneer Poultry before HREOC by leave: exhibit R1.
I heard both of these matters concurrently and accepted evidence in one matter as evidence in the other matter. I received evidence first from Ms Beamish, noting that she had instituted her proceedings earlier. Mr Zheng was assisted throughout the hearing by a Mandarin interpreter.
The evidence
Ms Beamish relies upon her two affidavits of 13 March 2003 (filed on 25 June 2003) and 15 December 2003 (annexed to and filed with her response to Mr Zheng’s application on 6 January 2004). Ms Beamish also relies upon an affidavit by a work colleague, Danielle Dawn Farmer, prepared for Mr Zheng’s proceedings in the Industrial Relations Commission. I accepted this as a document tendered in these proceedings: exhibit A1. I also permitted Ms Beamish to rely upon oral evidence from her mother, Ruby Irene Beamish, as well as to rely upon oral evidence from Ms Farmer and to give oral evidence herself.
Mr Zheng relies upon his two affidavits of 25 July 2003 (filed on 13 August 2003) and 25 November 2003 (filed on 26 November 2003). I also permitted Mr Zheng to give additional oral evidence to augment what was in his affidavits. I did not receive into evidence the medical reports forming annexure A to Mr Zheng’s first affidavit because the medical practitioners had not been made available for cross-examination (notwithstanding a request for them to be made available by Ms Beamish’s solicitor). I gave Mr Zheng the opportunity for an adjournment at his expense in order for him to arrange for the medical practitioners to be made available but he declined that adjournment.
The legislation
Section 28B of the SDA provides 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.
(3) It is unlawful for a person to sexually harass:
(a)a commission agent or contract worker of the person; or
(b) a person who is seeking to become a commission agent or contract worker of the person.
(4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.
(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.
(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.
(7) In this section:
"place" includes a ship, aircraft or vehicle.
"workplace" means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.
"workplace participant" means any of the following:
(a) an employer or employee;
(b) a commission agent or contract worker;
(c) a partner in a partnership.
Section 18C of the RDA provides as follows:
(1)It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Human Rights and Equal Opportunity Commission Act 1986 allows people to make complaints to the Human Rights and Equal Opportunity Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a)causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
"public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
Reasoning
In her evidence Ms Beamish details a history of unwelcome sexual advances to her by Mr Zheng between late April or early May 2001 until 6 September 2001 when, following a complaint to her employer by Ms Beamish, Mr Zheng was suspended without pay. Mr Zheng denied the allegations of sexual harassment but he conceded that he was suspended and subsequently dismissed from his employment on the basis of Ms Beamish’s complaint. The alleged conduct of Mr Zheng was a combination of sexual comments, an attempt at touching of her breasts and a request for sex with an offer of $200.
Ms Beamish was a quiet and unassuming witness. Her evidence was internally consistent and was given calmly but with certainty. Ms Beamish’s evidence that Mr Zheng attempted to touch her breasts on 30 August 2001 was corroborated by Ms Farmer who, in her oral evidence, stated that Ms Beamish had spoken to her about this incident at the time. Ms Farmer had prepared evidence of a similar incident concerning herself and Mr Zheng for the Industrial Relations Commission. Ms Farmer had also, in her affidavit in the Industrial Relations Commission proceedings, corroborated Ms Beamish’s statement that Mr Zheng had offered her $200 for sex. She confirmed this in her oral evidence. She stated that Ms Beamish had told her about this at the time it occurred. Ms Beamish’s account was also corroborated by her mother in her oral evidence. Mrs Ruby Beamish stated that her daughter had reported to her regularly over a period of about six months that Mr Zheng had made unwelcome sexual comments and gestures to her and had tried to grab her breasts. Mrs Beamish also gave evidence that her daughter told her about the incident in which Mr Zheng offered her $200 for sex. I accepted the evidence of Ms Farmer and Mrs Ruby Beamish of what Ms Beamish had said to them pursuant to s.64(3) of the Evidence Act 1995 (Cth): Leslie v Graham [2002] FCA 32 at [52] – [55]. I found Ms Beamish, Ms Farmer and Mrs Ruby Beamish to be plausible witnesses. They resisted attacks upon their credibility under cross‑examination. They were unshaken in their evidence.
In contrast, Mr Zheng was not an impressive witness. He was very emotional when giving evidence and that needs to be taken into account but, even so, his evidence was internally inconsistent, vague and unpersuasive. He claimed that he did not know enough English to ask Ms Beamish to have sex with him for $200. However, he has lived in Australia for 15 years and clearly understands some English. He admitted understanding the meaning of the word “sex” and understanding a reference to $200. He admitted speaking both English and Chinese in the workplace. He gave blanket denials that he had made any sexually suggestive statements to Ms Beamish or that he attempted to touch her breasts. He was not able to produce any evidence to corroborate his denials.
Mr Zheng claimed that the sexual harassment claim against him was some kind of conspiracy involving Ms Beamish, Ms Farmer and Mrs Beamish. Later, he claimed that it was a set up organised by his former employer, because he had complained about certain work practices involving date labelling of meat. These claims were unconvincing.
It is generally accepted that allegations of the type made by Ms Beamish should be proved to the Briginshaw standard: McAllister v SEQ Aboriginal Corp for Legal Services & Anor [2002] FMCA 109 at [39]. Mr Moorhouse conceded this. Given the seriousness of the allegations I must have a high degree of satisfaction that they are true. I do have that degree of satisfaction. I make the following factual findings:
a)in or about late April 2001 Mr Zheng said words to Ms Beamish to the following effect in the cool room at the workplace – “enough jiggy jiggy?”;
b)thereafter before or after weekends at the workplace Mr Zheng made comments periodically to Ms Beamish along the lines of, “Are you getting enough?” and “Getting plenty?” and “Not too much sex this weekend”;
c)in or about mid July 2001 in the cool room at the workplace Mr Zheng said to Ms Beamish, “you are a good girl, a very pretty girl. Daniel (Ms Beamish’s boyfriend) is a lucky boy”;
d)in or about August 2001 Ms Beamish overheard Mr Zheng say to another employee words to the effect of, “I like that one. She is very pretty”;
e)on 30 August 2001 Mr Zheng attempted to touch Ms Beamish’s breasts; and
f)on 31 August 2001 Mr Zheng said to Ms Beamish words to the effect, “I give you $200 for you to have sex with me”.
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 the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. “Conduct of a sexual nature” is defined by s.28A(2) to 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. The statements made by Mr Zheng was clearly conduct of a sexual nature. So was his action in attempting to touch Ms Beamish’s breasts. The conduct was unwelcome. His offer to pay $200 for sex was an unwelcome request for sexual favours.
The workplace in which Mr Zheng and Ms Beamish worked was a fairly rough and tumble place in which lighthearted behaviour was tolerated. In the circumstances, a certain amount of sexual banter could have been anticipated. However, Mr Zheng’s conduct was persistent and went beyond anything that could be described as lighthearted sexual banter. Ms Beamish’s reactions to his conduct should have made clear that it was unwelcome. In the circumstances, a reasonable person would have anticipated that Ms Beamish would have been offended, humiliated or intimidated by Mr Zheng’s persistent conduct. In particular, the attempt to touch her breasts was unacceptable and the offer of money for sex was grossly demeaning.
I find that by his words and actions Mr Zheng breached s.28B(2) and s.28B(6) of the SDA.
The claim by Mr Zheng against Ms Beamish of racially offensive behaviour contrary to s.18C of the RDA fails. There is a question whether the alleged conduct occurred otherwise than in private for the purposes of that section. However, even if Ms Beamish did do an act otherwise than in private the act was not done because of the race, colour or national or ethnic origin of Mr Zheng. Ms Beamish conceded that on one occasion she asked Mr Zheng if he was gay. She explained that this was a response to him touching her boyfriend’s crotch. Ms Beamish also admitted calling Mr Zheng an “asshole” on one occasion and said that this followed his request for sex. Ms Beamish denies sticking labels on Mr Zheng’s uniform, sticking up her middle finger at him, calling out, “Chinese Chinese” or patting him on the head. She denies that her complaint of sexual harassment was made because of his race. I accept her denials. In her oral evidence, Ms Beamish denied throwing meatballs at Mr Zheng but admitted throwing meatballs generally, stating that this was part of a game at the workplace. She stated, and I accept, that the meatballs were not aimed specifically at Mr Zheng. I accept that this conduct did not have any racial overtones.
Ms Beamish’s complaint of sexual harassment was not lodged because of the race of Mr Zheng. The complaint was made because the harassment occurred. It is noteworthy that Mr Zheng’s complaint of racial discrimination was made only after Ms Beamish made her complaint to HREOC. Annexure B to both of Mr Zheng’s affidavits is an affidavit he prepared for the purposes of his proceedings in the Industrial Relations Commission. In that affidavit Mr Zheng makes no allegation of racial discrimination against Ms Beamish. He stated that Ms Beamish teased him by saying he was “gay” and an “asshole” but said that these things were said in a joking manner and he responded in a joking manner. Mr Zheng put the absence of an allegation of racial discrimination in his IRC affidavit down to his lack of English. However, at the time he was legally represented and the affidavit was prepared with legal assistance. I have formed the view that Mr Zheng’s allegation of racial discrimination is an invention made in response to the claim of sexual harassment made against him. I note, in addition, that Mr Zheng alleges that the complaint of sexual harassment was a conspiracy engaged in by his employer as some kind of punishment for him not going along with bad work practices at the workplace concerning date stamping of meat. If that were true, there would be no connection to his race.
I will dismiss Mr Zheng’s application. On her application, Ms Beamish is entitled to a declaration and an apology. The remaining question is whether she should receive any damages and interest. Ms Beamish gave evidence that Mr Zheng’s conduct upset her, made her depressed and socially withdrawn and caused her physical illness, in particular, vomiting. Her mother corroborated that evidence. However, I have no medical evidence of any condition suffered by Ms Beamish. I accept that she suffered from a bout or bouts of vomiting but this might have had some physical cause, rather than the conduct of Mr Zheng. Ms Beamish gave evidence that she became reluctant to go to the workplace and went on a short break to Byron Bay to get away from the workplace. However, she returned to work and remained at the workplace up to and beyond the time when Mr Zheng was suspended and subsequently dismissed. In fact, she continued working for approximately five months after Mr Zheng left. Although she is a quiet person Ms Beamish appears, from her own evidence, to have been forthright in rebuffing Mr Zheng’s advances and had the courage to make a complaint against him to her employer. She gave evidence that she ultimately gave up her employment because of her fear of Mr Zheng (she thought he lived near to the workplace and saw him one day at a railway station) but that is not consistent with the forthright way in which she dealt with him when they were both at the workplace. In addition, I accept Ms Beamish’s evidence that her boyfriend (who also worked at Pioneer Poultry) threatened to kill Mr Zheng if he did not leave her alone. If anyone should have been afraid after that, it was Mr Zheng. Ms Beamish makes no claim for economic loss. In respect of non economic loss, I accept that Ms Beamish would have been offended and upset by Mr Zheng’s comments and actions. However, I have no evidence to persuade me that she has suffered any ongoing psychological trauma or that she is suffering from any medical condition as a result of Mr Zheng’s conduct. She should receive some compensation for the hurt and upset that Mr Zheng’s actions caused her but the damages that she received should, in the circumstances of this matter, be modest. I will award the sum of $1,000 by way of general damages.
I note in passing that I have reason to doubt that an order for damages will be paid. Mr Zheng gave evidence that he has been unemployed since being dismissed by Pioneer Poultry and said that he has no money. He has apparently not paid the solicitors who were acting for him, which explains why he was self represented at the hearing. Mr Zheng also told me that his wife has left him following his dismissal by Pioneer Poultry. The events leading to these proceedings have clearly been very traumatic for him. He has suffered a great deal and it is unfortunate that these proceedings could not have been settled. A damages order may well be futile but I will make the order nonetheless because to fail to do so may undermine respect for the important principles which the SDA protects. I will also order that Mr Zheng pay interest up to judgment from 31 August 2001 (when her cause of action was complete) at the rate of 9.5 per cent: Wattle v Kirkland (No 2) [2002] FMCA 135 at [72].
Mr Zheng should also pay Ms Beamish’s costs of both applications. Costs should be assessed in accordance with the Federal Magistrates Court scale. For the purposes of rule 21.15 of the Federal Magistrates Court Rules 2001(Cth) I certify that it was reasonable for Ms Beamish to retain counsel for the purposes of the hearing of this matter on 10 February 2004.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 February 2004
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