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Taric v Ahmed & Anor [2010] FMCA 479 (14 July 2010)

Last Updated: 15 July 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TARIC v AHMED & ANOR

HUMAN RIGHTS – Sex discrimination – it is sufficient if the applicant’s discriminatory characteristic was “a reason” for discriminatory conduct – discriminatory characteristic need not be the “real reason” or the “only reason” for the conduct.


CGU Insurance Ltd v Porthouse [2008] HCA 30; (2006) 235 CLR 103
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702; (2008) 173 IR 378

Applicant:
SEJDEFA TARIC

First Respondent:
MOQBUL AHMED

Second Respondent:
A BRIGHT BALUSTRADING PTY LTD

File Number:
SYG 1650 of 2009

Judgment of:
Cameron FM

Hearing dates:
16-17 February 2010 & 9 March 2010

Date of Last Submission:
9 March 2010

Delivered at:
Sydney

Delivered on:
14 July 2010

REPRESENTATION

Solicitors for the Applicant:
Remington & Co.

Counsel for the Respondents:
Mr A. K. Singh

Solicitors for the Respondents:
R. Chand & Associates

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1650 of 2009

SEJDEFA TARIC

Applicant


And


MOQBUL AHMED

First Respondent

A BRIGHT BALUSTRADING PTY LTD

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant was an employee of the second respondent between 22 August 2008 and 3 October 2008. The first respondent is the latter’s managing director. The second respondent’s business involves the design, fabrication and installation of balustrading. The applicant was employed in its office.
  2. The applicant alleges that she was sexually harassed by the first respondent and that her dismissal from her employment on
    3 October 2008 amounted to discrimination contrary to the Sex Discrimination Act 1984 (“Act”). She seeks damages for the suffering and stress she alleges she suffered during the course of that employment, damages assessed by reference to a car accident she alleges she was involved in because of the stress arising out of the alleged sexual harassment and damages for loss of income consequent upon the termination of her employment.
  3. For the reasons which follow, the application will be dismissed.

Allegations

  1. In her application commencing these proceedings the applicant stated that the matters she raised in her complaint to the Australian Human Rights Commission (“Commission”) were the grounds of her application to this Court. In that complaint the applicant alleged that when she was interviewed for her job with the second respondent:
    1. she was asked by one of the interviewers whether she was married; and
    2. the first respondent’s wife asked her whether she was married, if so for how long and whether she had any children.

The applicant considered these questions to be inappropriate.

  1. The applicant also alleged that during her employment with the second respondent the first respondent:
    1. eyed her trousers and said that he had similar ones;
    2. said that he had wanted to hire a particular Lebanese woman but she was so beautiful that someone, whom the applicant inferred was him, could lose control;
    1. discussed how extra-marital sex was customary amongst “all Australian married couples”. She alleged that this comment was directed at her, as she had said that she was Australian and married, and that it expressed the first respondent’s desire to have sex with her;
    1. would attempt to flirt with her but would leave the office in an angry fashion because she declined to respond;
    2. would stand close by her when she was working; and
    3. gave her a computer to use, which had previously been used by him and on which he had received emails addressed to him at the second respondent’s business email address from Russian women looking to get married. She alleged that the first respondent’s wife knew of this which demonstrated that the first respondent and his wife thought “mixing business and sexual favours is normal”. The applicant complained that the first respondent “had no right to put me in to [sic] his disgusting fantasies ...”.
  2. The applicant also alleged that on 18 September 2008 she had a car accident which resulted from the stress she had been feeling at work and that about two weeks after the car accident the first respondent’s wife asked her when she had last menstruated.
  3. The applicant alleged that her employment had been terminated because the first respondent was “not getting any sexual favours from me”.
  4. The respondents deny that they sexually harassed the applicant or discriminated against her in the termination of her employment.

The legislation

  1. The provisions of the Act relevant to these proceedings are:

(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.
...

14 Discrimination in employment or in superannuation
...

(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.
...
28A Meaning of sexual harassment

(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:
28B Employment, partnerships etc.
...

(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:
(a) an employer or employee;
(b) a commission agent or contract worker;
(c) a partner in a partnership.
105 Liability of persons involved in unlawful acts
A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.
106 Vicarious liability etc.

(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b) an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

  1. The applicant will have made out her allegation of sexual harassment if she proves that the conduct which she alleges occurred was of a sexual nature and unwelcome, or amounted to an unwelcome sexual advance or request for sexual favours, and that a reasonable person in the circumstances would have anticipated that she would be offended, humiliated or intimidated by that conduct. The test of what a reasonable person would have anticipated is an objective one and turns on consideration of a reasonable person’s state of mind, not the first respondent’s state of mind: cf CGU Insurance Ltd v Porthouse [2008] HCA 30; (2008) 235 CLR 103 at 118 [52], [53].
  2. The applicant will have made out her allegation of sex discrimination if she proves that the relevant conduct, namely her dismissal, amounted to treatment which was less favourable than a male would have received in circumstances which were the same or not materially different. It is necessary for the applicant to show that she was treated less favourably than a man would have been and that this was because of her sex: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702; (2008) 173 IR 378. It will be sufficient if the relevant discriminatory characteristic, namely her sex, was “a reason” for the alleged conduct; it need not have been the “real reason” or the “only reason” for the conduct: Sterling Commerce v Iliff at 393 [48].
  3. If the allegations are made out the first respondent would be primarily liable for acts of sexual harassment, with the second respondent vicariously liable under s.106 of the Act, and the second respondent would be primarily liable for sex discrimination, with the first respondent accessorily liable under s.105 of the Act.

Background

  1. The applicant’s complaint against the respondents arises out of what she characterises as unwelcome sexualised behaviour on the part of the first respondent which not only distressed her at the time but led to her dismissal. Of central importance to the disposition of this issue is the applicant’s evidence that most of this behaviour occurred at times when the applicant and the first respondent were alone together. Consequently, the resolution of the most important factual issues in the proceedings turns largely on the credibility of the applicant and the first respondent.

The evidence

The job application

The applicant

  1. Annexed to the applicant’s affidavit filed on 4 September 2009 are copies of email correspondence passing between her and the second respondent in which she is recorded as expressing her interest in a position identified by number 181364386 and which she described in the email as “Office All Rounder”.
  2. In support of her job application the applicant submitted a resume, a copy of which is an annexure to an affidavit of the second respondent’s office manager, Steven Warner, sworn 26 August 2009. In it the applicant claimed that she held an Associate Diploma in Architectural Technology from TAFE and that between November 2001 and
    October 2004 she was a building/engineering services architectural technician involved in design and drafting townhouses in Leichhardt.
  3. The applicant said that the builder with whom she worked in Leichhardt would design houses and that she would draw them up. She said that she drew the facades so that the new houses would look like the (neighbouring) old ones. She said that she drew up the outer appearances of the town houses after the builder had already drawn up something and given it to her. In cross-examination she agreed that, in her resume, she had meant to convey that she had designing and drafting experience.
  4. Before her employment with the second respondent, the applicant participated in a job interview. At that interview the respondents were assisted by a friend of the first respondent, Khurram Nazir.
  5. In her affidavit of 13 November 2009 the applicant deposed that Mr Nazir had told her in the interview that the “Office All Rounder” position involved answering telephone calls, filing, invoicing, taking appointment times over the telephone, keeping the office organised, reminding the estimators when quotes were due, answering emails and faxing. She said that the role was only for office work and that drafting was never mentioned at any time before the commencement of these proceedings. She said that she did not apply for a drafting job and that such work was not discussed at the interview. She said that at the interview they went through her resume and looked at all the jobs she had held, including the one where she worked for the Leichhardt builder. She deposed that Mr Nazir had asked her if she had used AutoCAD there and she said that she had not, although she “did autocad at Tafe” a few years before.
  6. The applicant said that during the interview she did not discuss her qualifications, and in particular the TAFE course, and she did not say to Mr Nazir that she could use AutoCAD.
  7. In her complaint to the Commission, the applicant said that after the interview but before she left the second respondent’s premises, the first respondent’s wife, Ireen Nath, asked her in a demanding tone whether she was married, how long she had been married and whether she had any children. The applicant alleged that Mr Nazir had also asked her whether she was married.

The respondents

  1. Annexed to the first respondent’s affidavit sworn 16 September 2009 is a copy of the advertisement for the position filled by the applicant. Under the heading “Engineering/Drafter/Estimator” the advertisement states:

The term “Office All Rounder” does not appear in the advertisement. The advertisement contains the reference number 181364386.

  1. The significance of AutoCAD skills to the second respondent’s business was made apparent by the evidence of Mr Nazir. He said that at the interview he stated that the second respondent required the successful applicant to work as a draftsperson to make sketches and to help estimators. He said that during the interview he asked the applicant if she was familiar with AutoCAD procedures because this software was used in the second respondent’s office. He said that the applicant said that she had used AutoCAD before and had done a TAFE course which permitted her to work as an architectural technician. He said that he remembered asking this question because the applicant’s resume did not specifically address her familiarity with AutoCAD. He said that what was required in an all-rounder position was somebody with general level skills in Microsoft Word, Excel and AutoCAD. He said that “all-rounder” was the word they used to show that the person could multitask at a general, rather than expert, level of expertise.
  2. In his statement which became exhibit A, Mr Nazir said that during the interview with the applicant he had said that the second respondent required her to work as a draftperson to make sketches. He also stated that he had said that:

or words to that effect. He further stated that the applicant said:

I have a diploma in Architectural Technology from TAFE and am fully aware and comfortable to use AutoCAD as I have been working as an Architectural Technician for more than two years

or words to that effect.

  1. Mr Nazir stated that after speaking to the applicant he had a private conversation with the first respondent and expressed the view that the applicant seemed competent enough to be given a chance because, amongst other things, she had good qualifications and work experience in the construction industry.
  2. In his affidavit of 26 August 2009 the first respondent corroborated Mr Nazir’s evidence that the latter had asked the applicant at her job interview whether she knew how to use AutoCAD software. The first respondent deposed that the applicant had said in response to Mr Nazir’s query that she had done a course at TAFE. He said that the applicant was employed as a draftsperson and as an all-rounder, in the sense that an all-rounder was expected to do everything, and that she had been employed based on her resume in which she had said that she had been a designer of townhouses for three to four years.

Questions about marriage at job interview

  1. The first respondent’s wife, Ms Nath, who worked for the second respondent as an accountant, deposed that to the best of her recollection, she did not ask the applicant about her marital status but only about whether she had children and that she did so in order that the applicant could be given some flexibility at work in relation to school pick ups and drop offs. The first respondent deposed that his wife had asked the applicant whether she had any children.
  2. In his statement Mr Nazir said that he had asked the applicant whether she had any difficulties being the only woman in the office apart from Ms Nath since the latter had occasion to leave the office to attend to other duties and to collect children from school. He also said that Ms Nath had asked the applicant whether she had family and children and whether she would be comfortable working the hours which the job required.

Sexual harassment claim

The applicant

  1. The applicant said that on 22 August 2008, in the first week of her employment, the first respondent asked her to stay back after 5pm so that Mr Nazir could show her how to do invoices on the computer. Her evidence was that at some time between 4.30pm and 5pm, while she was sitting at her desk, the first respondent asked her to come and look at his computer where he showed her how the second respondent’s website linked pictures of products to the pricing of those products. She says that he then showed her a stack of resumes, saying that they came from people who had applied for the job to which she had been appointed. He then allegedly said that he had been going to hire a Lebanese woman but did not do so because someone could have lost control around her. The applicant concluded that he was speaking about himself and this led her to fear that he would lose control around her.
  2. In her complaint to the Commission the applicant also said in connection with this discussion that the first respondent eyed her trousers and said that he had similar ones. She alleged to the Commission that he went on to say that “all Australian married couples have sex outside the marriage with many people” and went on to discuss the behaviour of a couple known to him. In her complaint to the Commission she said that she knew the first respondent was directing this story to her because she had told him that she was Australian and married, although in fact she was single.
  3. The applicant said that during the instruction session she then had with Mr Nazir, the first respondent was present and that, because she was afraid of him, she kept her mobile phone in her hand in case she had to make a call for help.
  4. The applicant said that after these events she went back to her desk and rang her mother to tell her what had happened. She said that she then contacted Mission Australia and told them too, following which she sent a text message to her boyfriend asking for advice. She says that her boyfriend replied to her message. However, annexed to her affidavit filed 4 September 2009 the applicant only reproduced copies of her initial message and her subsequent response to her boyfriend’s reply. She did not reproduce his reply to her first message. It might also be observed that although the applicant’s complaint to the Commission refers to her calling her family and Mission Australia, no mention is made of the alleged exchange of texts with her boyfriend.
  5. The applicant said that after the second respondent moved to its new office, which happened not long after she started work, the first respondent would often stand beside or behind her and when he did this she would walk away. She said that the first respondent would stand, about half a metre from where she was sitting at her desk, looking out the window for up to half an hour. He would walk into the office which she shared with Alex Balatbat and Ahmad Quesada happy, and smile at her. However, he would leave angry, stomping his feet. She said that when he smiled at her she would direct her eyes away because his smile revealed that he was “hopeful”. She said that the first respondent would walk out of the office because she would not talk to him. The applicant said that the first respondent would stand behind her and to the side of her every chance he had when they were alone, which was probably once a day nearly every day in the new office.
  6. The applicant also said that when the business relocated to its new office she was given the computer previously used by the first respondent. She said that on it she found a lot of emails addressed to the first respondent from Russian women who said they wanted to marry him and come to Australia. She said that this behaviour showed her that Ms Nath did not care about this and that the first respondent and Ms Nath thought this was normal behaviour. The applicant said that this really upset her.
  7. The applicant said that the first respondent’s conduct stressed her because she knew what he wanted from her. She said that she believed the first respondent had wanted sex each and every day.
  8. In a document entitled “EVIDENCE” attached to her affidavit filed on 4 September 2009 the applicant says that on 3 October 2008 during her termination interview with Mr Warner, she told him that from the beginning of her employment the first respondent had behaved inappropriately towards her. In that document she says that Mr Warner told her that he did not know why her employment was being terminated and that he was only doing what the first respondent had asked him to do.
  9. In her affidavit of 8 October 2009 the applicant’s mother, Remzija Kenjar, said that the applicant had told her that on her last day with the second respondent she had told Mr Warner that the first respondent had spoken about having sex with her and that Mr Warner advised the applicant that there were agencies to whom she could take her complaint.
  10. Christian Duarte is the applicant’s partner or boyfriend. The most significant element of his evidence concerned the text messages which he and the applicant were alleged to have exchanged on 22 August 2008 following the acts of sexual harassment allegedly committed by the first respondent that day. In his affidavit made on 8 October 2009 Mr Duarte quoted the text messages which are alleged to have been sent to him by the applicant on 22 August 2008. In his affidavit he made no express reference to having sent a text message in reply to the applicant’s first message. He deposed that:

It is likely that this statement was intended to refer to the contents of a text message as it appears that the applicant’s second text message was responsive to this communication from Mr Duarte. The significance of this passage lies in the fact that no attempt was made to quote Mr Duarte’s message in the same way that the applicant’s messages were quoted.

  1. Mr Duarte’s evidence was that on 22 August 2008 he received a text message from the applicant in the following terms:
  2. Mr Duarte said that he responded to this message by sending the applicant a text message of his own. He said that it followed hers by about five minutes. He said that his text message was not mentioned in his affidavit because at the time of swearing or affirming that affidavit he did not have anything to prove it. In his evidence on the first day of the hearing Mr Duarte said that the message he sent to the applicant on 22 August 2008 was not stored in his telephone because the “sent messages” memory feature had not been activated and his telephone did not store sent messages.
  3. On the second day of the hearing Mr Duarte produced a transcription of the text message which he said he sent to the applicant on 22 August 2008. He said that he found the message in the drafts folder of his mobile phone and had previously been unaware that it had been saved.

The respondents

  1. The first respondent’s evidence was that he had not talked to the applicant about sex, marriage, trousers, Lebanese girls or anything not connected with work. He denied the alleged statements concerning the practices of Australian married couples. He denied that he stood beside or behind the applicant as she alleged. He agreed that he went into the office where she worked but said that he did so only to speak to
    Mr Balatbat and Mr Quesada. He said that on such occasions he may have stood behind the applicant unintentionally.
  2. The first respondent deposed to his long hours of work and claimed that he had no time to chat with his staff. He deposed that he controlled about twenty-five workers, had numerous job sites and also had to communicate with clients, suppliers, trades people and financiers. The first respondent said that he was rarely in the office because he was mainly on building sites. Mr Warner deposed that the first respondent’s days were very hectic, lasting between 8.30am until 8.00pm most days. He said the first respondent would see visitors, go to the factory, interact with the three staff in the office and then go off to sites. On his return to the office he would take calls and work at the computer dealing with quotations.
  3. The first respondent also denied giving his computer to the applicant, saying that he shared it with his wife and that it had the payroll software and perhaps personal files on it. Moreover, his computer did not have AutoCAD whereas the other office workers’ computers did and that there would be no point swapping computers. He said that in the new office he kept his computer and the applicant kept hers.
  4. As to the computers’ internet and email access, the first respondent said that enquiries for jobs came from all around the world and that all the firm’s computers had access to incoming emails because everyone had the same email address. He said that the second respondent received a lot of junk email. Ms Nath said that the office received emails from Russian women via its website. She said that the emails were not marked to the attention of the first respondent and came in all the time.
  5. Mr Warner denied the applicant’s allegation that during their dismissal interview on 3 October 2008 she told him that the first respondent had behaved inappropriately towards her from the beginning of her employment or that he, Mr Warner, told her that there were agencies to which she could complain. He said that what he said was that she could seek employment through agencies such as Adecco and Skilled.

Car accident

  1. In her evidence the applicant referred to a car accident on 18 September 2008. She said that she was stressed every day after work because she knew what the first respondent wanted from her. On 18 September 2008 she was angry because she had not yet found another job. The applicant said that the accident was her fault because she should have made sure that the road was clear but she also said that the other driver ran into the back of her car. She said that she paid for the damage to the other car. In cross-examination she conceded that she might have told Mr Warner that it was not her fault although it turned out that it was. She also conceded that she might have told the first respondent that she did not think it was her fault.
  2. The applicant was also unhappy that, after her car accident, she was shown what she considered to be insufficient concern and attention by the respondents and Ms Nath. In particular, in her complaint to the Commission the applicant recalled the first respondent’s conduct in the following terms:
  3. The first respondent deposed that the applicant said that the car accident had not been her fault, that she had been hit by a P-plate driver and that in response to his query concerning how she was she had said that she was “ok”. Mr Warner deposed that during her termination interview the applicant discussed her work attendance saying that the only time she had taken off was when she had a car accident which had not been her fault as she had been “run up the rear”.
  4. Mr Quesada deposed that following the accident he spoke to the applicant who told him that she was alright and was not bruised.
  5. The applicant also alleged in her complaint to the Commission that about two weeks after the accident Ms Nath asked about the accident and who was at fault but, rather than also asking the applicant whether she was alright or had been injured, asked her when she had last menstruated.
  6. Ms Nath had little recollection of the applicant’s car accident other than that the applicant said to her that the damage was small. Ms Nath deposed that she had no recollection of asking the applicant about menstruation or sex.

Sex discrimination claim

Applicant

  1. As to her dismissal, the applicant said that on 3 October 2008 Mr Warner said to her that they were overhauling the business and that the first respondent had asked him to sack her. According to the applicant, Mr Warner did not say that the second respondent needed someone who could use AutoCAD but he did say that her work was very good, indeed flawless, and that everybody knew that she did not do AutoCAD work. Later in her evidence the applicant said that in the termination interview Mr Warner never mentioned AutoCAD. She also said that she told Mr Warner about the sexual harassment she had endured to which, she said, he replied:
  2. Mr Duarte deposed to having had a telephone conversation with the first respondent following the applicant’s dismissal. He said in his evidence that at the outset of that conversation he asked the first respondent why the applicant’s employment had been terminated. Mr Duarte said that the first respondent did not want to give him an explanation and that all he could say was that he was sorry. Mr Duarte deposed that he said to the first respondent:

to which the first respondent replied:

I’m sorry.
  1. Mr Duarte said that the first respondent had said to him words to the effect:

and

If I did say anything I apologise.
  1. Mr Duarte also deposed:

Mr Duarte said in his evidence that after that last exchange, the first respondent said:

I’m sorry I can’t tell you anything.

He agreed that this could have been the last thing the first respondent said in their conversation.

Respondents

  1. The first respondent deposed that, as office and factory manager, Mr Warner had the power to dismiss employees. He deposed that at one point Mr Warner came to him with a list of three employees whom he thought should be dismissed. One was the applicant and Mr Warner said that he was going to interview her and, if she could not use AutoCAD, he would dismiss her. The first respondent deposed that he approved Mr Warner’s proposal. He gave the applicant’s resume to Mr Warner saying that she had lied and told him to check to see if she could perform the tasks required and if not, it was Mr Warner’s decision.
  2. Mr Warner deposed that shortly after his appointment on
    1 October 2008 he asked the applicant whether she was using or comfortable using AutoCAD and that she had replied that she had used it at TAFE, but she was not confident in using it, her skills being limited to being able to open a file. He also deposed that on
    3 October 2008 Mr Balatbat, who was a qualified architectural draftsperson competent with computer-aided drawing, walked out without giving notice, leaving the business with no one competent in AutoCAD. Mr Warner decided that, in light of the resignation and the applicant’s inability to use AutoCAD, an opportunity then presented to restructure the office, which would involve dismissing the applicant.
  3. Mr Warner said that immediately upon Mr Balatbat walking out on 3 October 2008 he rang the first respondent saying that the business had a big problem because they no longer had anyone who knew how to use AutoCAD. Mr Warner said that the first respondent told him that he, Mr Warner, was in charge of the office and had to sort it out. In Mr Warner’s view, in order to afford the wages of a suitably qualified person, it would be necessary to restructure the office in order to free up financial resources and he thought that the best way to achieve this was by dismissing the applicant.
  4. Mr Warner deposed that in the applicant’s termination interview he advised her that, although in terms of her clerical work, reception work and phone answering he did not see a problem, the pre-requisite was that she be able to use AutoCAD. He said that she replied that she had used AutoCAD at TAFE but she could not use it and was only able to open files. He denied saying to the applicant that he did not know why her employment was being terminated as he was only doing what the first respondent had asked him to do, or that there were agencies to whom she could make a sexual harassment complaint, describing that latter proposition as “rubbish”. However, he did say that Adecco and Skilled were places where she could look for work. He also denied saying:
  5. As to the call from Mr Duarte, the first respondent said that he told Mr Duarte that there was a new office manager and that the relevant responsibility had been given to him. He said that he told Mr Duarte to speak to Mr Warner. The first respondent agreed that he apologised to Mr Duarte but said that this was with a view to diffusing the situation and to cool Mr Duarte down. He said that he had said words to the effect “if you are not happy with me, I am sorry” but he did not give Mr Duarte any explanation for the dismissal, in essence, because he was not going to give that sort of information over the telephone to a person he had never met.

Consideration

The job application

  1. The applicant’s job qualifications, and particularly her supporting resume, together with what was said to have occurred at her job interview are a useful starting point for the assessment of the credibility of the applicant’s factual claims and the respondents’ responses to them.
  2. Turning first to the applicant’s claimed qualifications and work experience, when cross-examined on the claims in her resume concerning her TAFE qualification and her work as a building/engineering services architectural technician involved in design and drafting townhouses in Leichhardt, the applicant was unable to remember the surname of her employer of three years and said that this person would design townhouses which she would draw up. Subsequently, she refined that answer by saying that what she drew were the facades of townhouses in order to satisfy the local council that the new townhouses would look like what she described as “the old townhouses”. When pressed on the details of her TAFE qualification, the applicant was evasive. On more than one occasion she was invited to confirm that she actually held the qualification but she declined to say that she did. I can only conclude that the applicant has no such qualification and that the representation in her resume that she did was untrue. It might also be noted at this point that Mr Duarte gave evidence that, as far as he knew, the applicant had no qualifications in drafting.
  3. The job advertisement to which the applicant replied is poorly drafted and confusing in its reference to AutoCAD skills being “required but not necessary”. However, I conclude that the second respondent intended to hire a person with AutoCAD skills. In this connection I have regard to the evidence of Mr Quesada who deposed in his affidavit sworn 26 August 2009 that before the applicant was hired, the first respondent said to him on many occasions that he was looking to employ a person with AutoCAD skills. Mr Quesada confirmed this evidence in cross-examination. I found Mr Quesada to be a careful witness doing his best to give an accurate account of events.
  4. As to the nature of the job for which she applied, the applicant’s evidence on this subject is contradicted by the advertisement to which she responded and the evidence of Mr Quesada. It is also contradicted by the evidence of Mr Nazir and the first respondent and I reject it. I also reject as unreliable her evidence concerning what was said at her interview about the job’s requirements and prefer the evidence of the first respondent and Mr Nazir.
  5. I conclude that the role for which the applicant was employed by the second respondent required her to have a working knowledge of AutoCAD and to provide estimators with technical support using that software. I take into account the contents of the police event report which is exhibit 3 but am not persuaded that the summary reference to the applicant’s job description appearing there should be preferred to the other evidence to which I have referred.
  6. I find that the applicant was made aware by the terms of the job advertisement, and the discussion at her interview, that the job she sought with the second respondent required her to have a working knowledge of AutoCAD. I find that she lacked this skill and misled the second respondent by claiming during the course of her interview that she was familiar with it and confident in its use.
  7. My conclusion is that the applicant was underqualified in a significant respect for the job which she had been employed to perform and that this arose out of the untruthful nature of the resume she submitted and the exaggerated claims she made in her interview.

Questions at job interview

  1. I am of the view that it is unlikely that the applicant was asked about her marital status at her job interview, although such an inquiry might easily be inferred from Ms Nath’s query concerning whether she had children. It seems that the applicant objected more to the timing of the alleged query and to the tone in which it was said to have been made than to the fact of it allegedly having been made. As she said in her complaint to the Commission, such questions could have been asked casually over a cup of coffee once she had started work. But in any event, the applicant has failed to link this alleged conduct to any provision of the Act which provides the basis for a claim. It did not amount to sexual harassment and it can hardly be actionable discrimination given that she was appointed to the job on terms and conditions about which she has not complained.

Sexual harassment claim

  1. The sexual harassment which the applicant alleges she suffered during the course of her employment with the second respondent can be characterised as a course of conduct allegedly initiated by the first respondent on 22 August 2008 and continued thereafter. Other than the parties, there were no witnesses to the relevant alleged events of 22 August 2008 and there is no way to resolve the differences between the evidence of the applicant and the first respondent as to what happened on that occasion other than by reference to their other evidence and their credibility generally. It is useful therefore first to give consideration to the events said to have occurred after
    22 August 2008 and then to consider the alleged conduct of
    22 August 2008.
  2. When it came to the allegation of sexual harassment in the new office, I found the applicant to be an unimpressive witness whose descriptions and enactments of how the first respondent was said to have stood near her to be contrived and implausible. I also do not find it credible that the first respondent would have stood near the applicant for half an hour at a time, possibly in the presence of Mr Balatbat and Mr Quesada, just looking out the window. Although I found the first respondent to be a straightforward witness doing his best to give an accurate recollection of events and I accept his denials of this conduct, even more persuasive was the evidence of Mr Warner. His description of the first respondent’s work practices and workload ring true. Given that evidence, the applicant’s allegation that the first respondent had time to waste in the manner she alleged is just not believable.
  3. The applicant alleges that in her termination interview on
    3 October 2008 she complained to Mr Warner about the first respondent’s conduct. Mr Warner denied this. My concerns with the applicant’s credibility and the favourable impression I gained of Mr Warner lead me to prefer his evidence on this point with the consequence that I reject the applicant’s claim to have complained to him about what she alleges to have been the first respondent’s conduct and her related claim that he told her that there were agencies to whom she could complain about that conduct. In making this finding I have also concluded that no reliance can be placed on the evidence of the applicant’s mother, Ms Kenjar, when she deposes in her affidavit of 8 October 2009 that the applicant told her that she had said to
    Mr Warner in her termination interview that the first respondent had talked about sex with her and that the latter had advised her of agencies to whom she had a right to complain. I find that the applicant did not say this to Ms Kenjar as such things had not been said during the applicant’s termination interview with Mr Warner.
  4. As to the emails from Russian women, I accept that such things were received by the second respondent’s business. However, I also accept that the second respondent had one email address and it was there that those emails were received. That being so, they would have been accessible by any of the second respondent’s staff with access to the email account and would not have been accessible only from the first respondent’s computer even had he given it to the applicant to use. However, with regard to the applicant’s allegation that she was given the first respondent’s computer when the second respondent moved to its new premises, I find that the first respondent’s evidence concerning why he would not have given his computer to the applicant to be logical and convincing and find that he did not. As a result, I find that if the applicant did view emails from Russian women while working for the second respondent, those emails were no more than spam and were received in the second respondent’s email account in circumstances which did not amount to sexual harassment.
  5. As to the events alleged to have occurred on 22 August 2008, the text message produced by Mr Duarte on the second day of the hearing does not read like the draft it was said to be, notwithstanding the SMS abbreviations and jargon it contains. Its substance is of a message in final form and I reject the allegation that it was a draft which was found overnight between the two days of evidence. Its late appearance on the scene in circumstances where the applicant had not reproduced it from her own phone, and where none of the exchange was referred to in the applicant’s complaint to the Commission, leads me to conclude that the story of its discovery cannot be accepted. That being so, I reject Mr Duarte’s evidence that the text message exchange occurred. I similarly reject the applicant’s evidence on that issue. I conclude that the exchange of texts did not occur as alleged.
  6. I also have difficulty accepting the accuracy of the assertion in Ms Kenjar’s affidavit affirmed 17 September 2009 that the applicant called her on 22 August 2008 and “told me that her boss wants sex from her”. In her evidence on 17 February 2009 Ms Kenjar said that (on 22 August 2008) the first respondent started talking about having sex with the applicant. Significantly, that is not what the applicant alleges happened, as recounted earlier in these reasons at [28] and [29]. In light of this important discrepancy and my finding concerning the weight to be given to Ms Kenjar’s 8 October 2009 affidavit, I accord no weight to Ms Kenjar’s evidence concerning the conversation she claims to have had with the applicant on 22 August 2008.
  7. The corroborative evidence adduced in support of the applicant’s allegations concerning what relevantly happened on 22 August 2008 has either been rejected or given no weight. What remains is an assessment of who, of the applicant and the first respondent, is more likely to be telling the truth. I have found the applicant to be an unconvincing and unimpressive witness. In this connection I have regard to my assessment of the applicant’s evidence of events after 22 August 2008, to the misleading content of her resume, to the evasiveness of her evidence concerning her claimed TAFE qualification, to my view of her evidence concerning the job interview and to what I have concluded was her misleading description of the job she was hired to perform. By contrast, I found the first respondent, Mr Nazir and Mr Warner to be persuasive and convincing witnesses and where their evidence differs from the applicant’s I prefer their evidence to hers. In the result, I do not accept that on 22 August 2008 the first respondent said to the applicant the things which she alleged he said.
  8. Consequently, I have concluded that the first respondent did not, during the course of the applicant’s employment, act towards her in a manner which contravened s.28B of the Act.
  9. Finally, I do not conclude from the evidence concerning the conversation between Mr Duarte and the first respondent that the latter was attempting to apologise for having acted inappropriately towards the applicant. In particular, I do not infer that the first respondent was making any admission to Mr Duarte that he had acted towards the applicant in a way which contravened the Act. Although I am satisfied that the first respondent sought to placate Mr Duarte and spoke in a mollifying way, that does not amount to an admission of wrongdoing.

Car accident

  1. The significance of the car accident is elusive in the context of the applicant’s sexual harassment claim except to the extent that it may relate to damages. The claim of sexual harassment involves an allegation that the applicant was paid too much attention, and of an unwanted sort, by the first respondent. Anomalously, the car accident allegations appear to be that the first respondent paid her too little attention. In any event, none of the conduct or inaction alleged against the first respondent in connection with the car accident was said to have amounted to a contravention of the Act. Further, I find that it did not amount to one. As to the allegation that Ms Nath questioned the applicant about her menstruation, I found Ms Nath to be a careful and impressive witness whose evidence I accept. I accept her denial that she made any such query. But even if she had, the applicant did not identify how such a query could amount to sexual harassment in the circumstances.
  2. Further, as I have found that the allegations of sexual harassment have not been proved, even if the applicant were able to prove that she caused the accident, no damages are available on that account.

Sex discrimination claim

  1. The nature of the job to which the applicant was appointed and the representations she made concerning her qualifications and work experience are important background issues relevant to the applicant’s allegation that she was dismissed for reasons which contravened the Act.
  2. With particular reference to the applicant’s significant lack of relevant skills in light of the criteria stated in the advertisement for her position, I find the evidence adduced in the respondents’ case to be logical and inherently persuasive. I conclude that the applicant was dismissed from her employment because she lacked the skills necessary to support the second respondent’s business in the fashion it required. In particular, I reject the applicant’s allegation that Mr Warner said to her in her termination interview that he did not know why she was being dismissed and that he was only doing what the first respondent had asked him to do. As I have concluded that the conversation at the termination interview did not run as the applicant alleged, I do not accept Ms Kenjar’s evidence in her affidavit of 8 October 2009 that the applicant told her that Mr Warner had said that “it is Moqbul’s idea” and that he did not know why she was being sacked.
  3. I find that the decision to terminate the applicant’s employment was one made by Mr Warner, albeit supported by the first respondent, and that it was motivated by the applicant’s lack of relevant skills, not her sex or anything related to it. It did not amount to sex discrimination.

Conclusion

  1. The applicant has failed to prove that she was sexually harassed during her employment with the second respondent or that she was dismissed from that employment for a reason associated with her sex.
  2. Consequently, the application will be dismissed.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Cameron FM


Associate:


Date: 14 July 2010

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