Kraus v Menzie [2012] FCA 3 (11 January 2012)

Last Updated: 23 January 2012

FEDERAL COURT OF AUSTRALIA

Kraus v Menzie [2012] FCA 3

Citation:		Kraus v Menzie [2012] FCA 3
Parties:		JADE XAVIER KRAUS; MARK MENZIE and THE TRUCK FACTORY PTY LTD
File number:		SAD 209 of 2010
Judge:		MANSFIELD J
Date of judgment:		11 January 2012
Catchwords:		HUMAN RIGHTS – discrimination − sexual harassment − inappropriate conduct, gifts and multimedia text messaging
Legislation:		Sexual Discrimination Act 1985 (Cth) Sex and Age Discrimination Amendment Act 2011 (Cth) Australian Human Rights Commission Act 1986 (Cth)
Cases cited:		Elliott v Nanda [2001] FCA 418; (2001) 111 FCR 240
Date of hearing:	23, 24 and 25 August 2011, 30 August 2011, 11 October 2011 and 11 November 2011
Date of last submissions:	10 November 2011
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	140
Counsel for the Applicant:	P Heywood Smith QC
Solicitor for the Applicant:	Duncan Basheer Hannon
Counsel for the Respondents:	S Cole
Solicitor for the Respondents:	Rossi Legal

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 209 of 2010

BETWEEN:	JADE XAVIER KRAUS Applicant
AND:	MARK MENZIE First Respondent THE TRUCK FACTORY PTY LTD Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	11 JANUARY 2012
WHERE MADE:	ADELAIDE

THE COURT DECLARES THAT:

1. The respondents sexually harassed the applicant, contrary to s 28B of the Sex Discrimination Act 1984 (Cth) by the following conduct:

1.1 by the first respondent purchasing for the applicant, and insisting that she accept, certain Playboy underwear and pyjamas on or about 7 November 2009;

1.2 by the first respondent cajoling the applicant to undress to her underwear and to swim with him in the Port Wakefield River in the course of a working trip on or about 19 November 2009;

1.3 by the first respondent endeavouring to share a confined cabin bunk within the truck on a work journey from Mount Gambier to Adelaide on the night of 22-23 November 2009;

1.4 by the first respondent sending to the applicant text messages and images which were very coarse and sexually explicit on:

22 November 2009;

26 November 2009;

26 November 2009; and

1 December 2009;

1.5 by the first respondent giving to the applicant lingerie and other sexually suggestive Christmas gifts on about 18 December 2009.

AND THE COURT ORDERS THAT:

2. The respondents jointly pay to the applicant damages of $12,000.

3. The parties be at liberty to file and serve within 14 days such submissions as to the costs of the application as they may be advised, and to file any responsive submissions within a further period of 14 days, to the intent that the Court will then determine any disputed issue as to the costs of the application on the written submissions.
   

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 209 of 2010

BETWEEN:	JADE XAVIER KRAUS Applicant
AND:	MARK MENZIE First Respondent THE TRUCK FACTORY PTY LTD Second Respondent

JUDGE:	MANSFIELD J
DATE:	11 JANUARY 2012
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an unfortunate case. It concerns allegations of sexual harassment and unlawful discrimination in employment, contrary to ss 28B and 14(2) of the Sexual Discrimination Act 1985 (Cth) (the SD Act).
2. The applicant Ms Kraus worked for the second respondent The Truck Factory Pty Ltd (The Truck Factory) as a receptionist between 14 September 2009 and 27 April 2010. The first respondent Mr Menzie is the “owner” of The Truck Factory.
3. Ms Kraus alleges that almost from the start of her employment she was sexually harassed by Mr Menzie by unwelcome advances and conduct, including inappropriate and unwanted gifts of lingerie, sex toys and scanty clothing, and text and multimedia messaging containing explicit and pornographic content. The inappropriate conduct also included prevailing on Ms Kraus to go on four “business trips”:
   • to Melbourne on 27 to 29 November 2009;
   • to Tasmania from 3 to 6 January 2010;
   • to Mount Gambier from 21 to 22 January 2010; and
   • to Sydney from 12 to 13 February 2010.
4. On those occasions Mr Menzie provided only one bedroom, so forcing her to share a bed with him.
5. The inappropriate conduct also was said to occur on a number of day trips including:
   • to the Yorke Peninsula Fair on 1 October 2009;
   • jet skiing on the River Murray on 7 November 2009;
   • to Port Wakefield on 19 November 2009;
   • to Mount Lofty on an evening in early December 2009;
   • to the Barossa Valley again in early December 2009; and
   • to see the Lobethal Christmas lights on 18 December 2009.
6. Ms Kraus complains that on some occasions, Mr Menzie imposed on her by holding her, forcing her to sit on him and to pose for photos, by massaging her and improperly touching her.
7. Ms Kraus says she reluctantly tolerated that behaviour, through fear of losing her job. It was the first full-time job she had held. She had a mother who was diagnosed with a serious and terminal illness in December 2009. Unfortunately her mother passed away in July 2010. Ms Kraus said she needed the job to secure income so she could properly look after her mother, and support herself. Her father had not been in contact with Ms Kraus for a very long time.
8. Mr Menzie, in large measure, does not dispute that he engaged in the conduct of which Ms Kraus now complains. However, he says that it took place in the context of a personal relationship between the two of them, which extended to a consensual sexual relationship. Ms Kraus denies that there was any sexual relationship between them at all.
9. It is common ground that the conduct of which Ms Kraus complains came to an end at least by about mid March 2010. From Mr Menzies’ perspective, the relationship had come to an end. Ms Kraus continued to do her normal work duties.
10. On Friday, 23 April 2010, Ms Kraus was told by Mr Menzie that some issues had come to his attention concerning her work. There was to be a meeting with the office manager, the workshop manager, and Ms Kraus and Mr Menzie the next working day, on Tuesday, 27 April 2010. She says she was told that the meeting was to discuss her future employment. Ms Kraus did not return to work after 23 April 2010. She thought her employment was about to be terminated.
11. Over that weekend, following that discussion on the Friday, clearly Ms Kraus became unwell. She consulted a doctor on 27 April 2010 and was given certificates of unfitness for work until 23 June 2010 due to an “acute stress disorder” attributed to “harassment and bullying” at work. Thereafter she was assessed as fit for work, except to return to her former work. She had problems with sleep and anxiety. Medical evidence shows the stress progressed to diagnosed post-traumatic stress disorder and depression. She was referred to a psychologist for counselling. The psychologist did not take a detailed history of Ms Kraus’ circumstances, as that was not then necessary. By then, her claim for compensation against the The Truck Company had been accepted. In the course of her counselling sessions, the psychologist compiled some detailed history consistent with Ms Kraus’ evidence in this matter. On the basis of that history, the psychologist regarded the sexual harassment as the predominant causal stressor for Ms Kraus’ psychological condition.
12. Ms Kraus was also referred to a psychiatrist for assessment by the insurer of The Truck Company. He saw Ms Kraus on 21 July 2010. He diagnosed an adjustment disorder with depressed mood. He agreed generally with the assessment of Ms Kraus’ working capacity, as her major issue by then was her loss of confidence. In his view suitable employment would restore that confidence, but with “a continuing low grade depressive reaction until litigation is finalised”. A part-time return to work for one month was encouraged. That is also reflected in the psychologist’s view that, after this case is finished, Ms Kraus should fully recover within six months with six further counselling sessions, perhaps with some vulnerability in the event of further similar traumas. The psychologist, who has seen Ms Kraus some 14 times, more or less monthly, from June 2010 also observed an increase in symptoms with the proximity of this case, and the stress of having to confront Mr Menzie again.
13. All the medical witnesses accepted that Ms Kraus’ condition was consistent with the cause attributed to it by her, namely sexual harassment at work and culminating in her expectation that she was about to lose her job. None of the general practitioner, the psychiatrist, or the psychologist questioned her personal history. They each assumed it was correct. The psychiatrist also accepted that Ms Kraus’ condition was consistent with her having anxiety and stress from her mother’s illness, and then being compounded by her fear of losing her job and the consequential loss of income − that is, her condition was also consistent with those circumstances, without any prior sexual harassment.
14. I do not think the medical evidence plays any real role in supporting Ms Kraus’ claim that her medical condition was caused, or contributed to, by any sexual harassment or sexual discrimination at her work. None of the doctors explored the accuracy of her medical history. As stated above, they each assumed it was accurate and made evaluations on the basis of those assumptions. Her compensation claim on the basis of stress from sexual harassment at work had been accepted by the insurer of the employer. Moreover, in the case of the psychiatrist and the psychologist, they relied upon a written document prepared by Ms Kraus titled “Chronology”, which sought to present her recollection of events consistently and coherently.
15. In the light of all the evidence, I consider that the alternative hypothesis put forward on behalf of Mr Menzie, namely that her condition was caused by the stress and anxiety from her mother’s serious condition and by the fear or perception that she was about to lose her job and her source of income, is equally available. Her presentation of symptoms to the medical witnesses can be explained on that basis. Senior counsel for Ms Kraus, in the course of final submissions, accepted that to be the case. In other words, the medical evidence does not really assist me in resolving the critical factual issues between Ms Kraus and Mr Menzie.
16. The psychiatrist in evidence said that certain photos and videos taken by Mr Menzie of Ms Kraus whilst she was in Melbourne were not consistent with how Ms Kraus described to him how she felt at that time. I have regarded his evidence on that score as neutral too. His views were cautiously expressed. I think that, for the purposes of this case, my assessment of the evidence of the two principal witnesses, Ms Kraus and Mr Menzie, is not aided by his comments. I do not think they add to the overall evidence in any way, but of course the pictures and videos themselves are or may be of significance. I address that issue below.
17. Not surprisingly, in addition to whether the undisputed conduct amounted to sexual harassment or sexual discrimination in employment, there were some aspects of the behaviour of Mr Menzie which were to some degree disputed. There is also a vigorously disputed claim by Mr Menzie that on four occasions he and Ms Kraus engaged in sexual intercourse. Ms Kraus denies that that occurred at all.
18. Consequently, the determination of the claim largely depends upon which of the competing versions of the events I accept, especially on the topic of Ms Kraus’ willingness or apparent willingness to participate in them. I am mindful that apparent willingness on her part may not indicate unequivocal or any actual willingness to do so, either on a specific occasion or more generally. The precise factual questions to be decided will be identified below after considering the statutory provisions. However, as there is a direct conflict of evidence about whether Ms Kraus and Mr Menzie engaged in sexual intercourse at all, there is no nuance about that behaviour. It either occurred or it did not. That is a question I shall have to address. The answer to that question will be informed by an overall assessment of the reliability of the evidence of Ms Kraus and Mr Menzie.

THE LEGISLATION

19. The relevant provisions of the Sex Discrimination Act 1984 (Cth) (the SD Act) are s 5 defining “sexual discrimination”, s 14(2) and ss 28A and 28B. They relevantly provide:
    5. Sex discrimination
       

(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.

(1A) To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

(3) This section has effect subject to sections 7B and 7D.

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; breastfeeding or family responsibilities:
(a) in the terms or conditions of employment the employer affords the employee;
...
(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:

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.

28B Employment, partnerships etc.

(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.

...

(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.

20. I note that s 28A(1) has now been amended to substitute the word “might” for the word “would”: Sex and Age Discrimination Amendment Act 2011 (Cth). The findings of fact required in this matter do not depend on the different emphasis given by those words. The amendment does not apply to the present issues.
21. The submissions indicate that the starting point is the definition of sexual harassment. There are relevantly two elements to that definition:

(1) unwelcome sexual advances or unwelcome sexual conduct (the final submissions of Ms Kraus referred only to s 28B(1)(a) although I think that must be a reference to s 28A(1)(a) and the wording used in the submissions seems to cover both s 28A(1)(a) and (b) – I shall therefore consider both subclauses); and

(2) that a reasonable person in all the circumstances would have anticipated that the person harassed would be offended, humiliated or intimidated.

22. It is common ground that the question of whether conduct is unwelcome is to be determined on a subjective basis − that is by reference to the state of mind of Ms Kraus. It is also common ground that the question whether conduct has the character referred to in s 28A(1), which is the test set out above at paragraph [21(2)], is to be determined on an objective basis: the perspective of a reasonable person in the role of a hypothetical observer (Leslie v Graham [2002] FCA 32 at [70] per Branson J).
23. If sexual harassment is made out, the respondents did not contend that The Truck Company and Mr Menzie would not respectively have contravened s 28B(1) and (2) of the SD Act. Their defence was simply that sexual harassment was not established because Mr Menzie’s conduct towards Ms Kraus was not unwelcome, and because judged objectively, a reasonable hypothetical observer would not have anticipated that Ms Kraus would have been offended, humiliated or intimidated by it.
24. The next step in Ms Kraus’ claim, if she established contraventions of s 28B, was to contend that the conduct also amounted to discrimination in employment, contrary to s 14(2)(a) and (d). The detriment and the less favourable terms or conditions of employment pleaded were said to be that Ms Kraus was forced to work in a “hostile, demeaning and oppressive work environment”. The oral submissions explained that that referred to Ms Kraus being isolated from any contact with Mr Menzie in the period from about early or mid-March 2010 (when Mr Menzie’s personal approaches to her came to an end) and being isolated from other employees.
25. Section 14(2)(c) is also set out above, simply to note that Ms Kraus did not contend that she was dismissed from her employment by The Truck Company. However, it was contended on her behalf that the discrimination in employment was a cause of her employment coming to an end − she reacted to the foreshadowed meeting scheduled for 27 April 2010 by effectively abandoning her employment and this conduct was consistent with her stress and depressive condition said to be caused by the discrimination.
26. If conduct on the part of Mr Menzie is found to contravene ss 14 or 28B of the SD Act, it will be necessary to consider the nature and extent of the consequences which followed. The contravention of either (or both) of those provisions entitles Ms Kraus to an award of compensatory damages: ss 3 and 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth), as that would amount to unlawful discrimination.
27. The alleged contravention of s 14(2) is not straightforward. Section 5 imposes the test that the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person of the opposite sex. The discriminator for the purposes of s 14(2) is The Truck Company as the employer, i.e. Mr Menzie’s conduct constituted unlawful discrimination by the employer. The “counterfactual” evaluation required by s 5 is unclear.
28. Elliott v Nanda [2001] FCA 418; (2001) 111 FCR 240 addressed that question. Moore J at [111]-[128] decided that sexual harassment under ss 28A and 28B could amount to sex discrimination as informed by ss 5 and 14 of the SD Act. His Honour at [130] then concluded that the employer, by the harassing conduct, imposed a detriment within the meaning of s 14(2)(d) on the grounds of her sex. There was no apparent need to address the counterfactual prescribed in the definition of sex discrimination in s 5. However, that is a matter which Mr Menzie specifically raised here.
29. The first step is to identify clearly how Ms Kraus was treated. The second step is to identify the comparable circumstances, for the purposes of seeing how a male person rather than a female person would have been treated. That presents some difficulty in the present matter. It is not clear whether it is necessary to assume sexual harassment of a male employee of similar nature to that asserted by Ms Kraus, and to then decide if the employer would have treated a male employee differently, or whether the fact that Mr Menzie’s conduct was directed towards Ms Kraus because of her sex is sufficient. In this case, the contention was that the different treatment was in the isolating of Ms Kraus when the harassing conduct ceased, so the question may be whether a male victim of harassment would have been treated differently. For reasons which appear below, it is not necessary to determine how the “counterfactual” should be constructed and answered.

CONSIDERATION OF EVIDENCE AND FINDINGS

30. Both Ms Kraus and Mr Menzie gave their evidence in an apparently straightforward way. From their respective demeanour, I did not discern any particular reason to reject the evidence of one or other of them. Nevertheless, that task confronts the Court, in particular on the issue of whether they had a sexual relationship. In that respect, there is no room for error or misunderstanding. There is no room for the conduct to have been misunderstood as unwelcome, despite a belief on the part of Mr Menzie that his conduct was welcome. The finding on that issue may also assist in determining whether Mr Menzie’s undisputed conduct was in fact unwelcome by Ms Kraus, as she claimed, and, if it was, whether from the perspective of a reasonable bystander, viewed objectively, the bystander would have anticipated that Ms Kraus would be offended, humiliated or intimidated by that conduct.
31. The assessment of the respective reliability of the evidence of Ms Kraus and Mr Menzie is considerably assisted by other evidence, mostly generated by them, which was contemporaneous with the conduct of which Ms Kraus complains. It is also assisted by features of their respective evidence, each given over some considerable time, in relation to other evidence and to its inherent probability.
32. The evidence includes the very extensive text messages that passed between them, apparently commencing on 25 September 2009 and ending on 13 April 2010. The text messaging commenced about two weeks after Ms Kraus first started work with The Truck Company, and ended about two weeks before her employment came to an end. There are also very extensive photographs, mainly taken of Ms Kraus by Mr Menzie; telephone account records relating to The Truck Company; and a video record taken by Mr Menzie on his phone of Ms Kraus on 28-29 November 2009 when they were in Melbourne together.
33. I also note that Ms Kraus provided to the Workers Compensation insurer of The Truck Company a typed statement setting out lists of “Sexual Harassment Issues” and “Things Mark has bought me that has been unwanted and have as evidence” and of “Places Mark has taken me that have been unwanted”. Its contents are consistent with her evidence, and the “Chronology” of some 39 pages which she adopted as part of her evidence. It is dated 31 May 2010. It was compiled by Ms Kraus in the period up to that date, from about one month after her employment came to an end. She said it represented her recollection of events and how she felt about them from time to time over the period of her employment. The Chronology was obviously compiled in part by reference to the records of text messages. There is also in evidence a transcription of a tape-recorded interview of Ms Kraus by a representative of the Working Women’s Centre, made on 21 June 2010; a “Statement of Events and References” provided by Ms Kraus to the Worker’s Compensation insurer of The Truck Company, apparently provided to one of the medical witnesses as the relevant factual history; and the claim form for worker’s compensation dated 11 May 2010. Each of those documents is consistent with her evidence.
34. Apart from the Chronology, none of those documents were the subject of particular closing submissions of counsel. It was not suggested that any of them had particular contexts or features. It is not necessary to further refer to them, other than the Chronology.
35. There is no contemporaneous document of Ms Kraus, other than as evidenced by the text messages, which indicates her attitude to the conduct of Mr Menzie of which she now complains. The first written record of any concern by her about that conduct is recorded by her general practitioner, who she first saw on 6 May 2010. She then complained of harassment at work by The Truck Company, as a result of which she felt uncomfortable and unsafe. She was diagnosed with depression and post traumatic stress. A medical certificate referring to “harassment and bullying by boss at work” was then issued to cover the period from 27 April 2010. The worker’s compensation claim asserting “sexual harassment” is dated 11 May 2010. Thereafter the Chronology and the other documents came into existence. Ms Kraus said that in about January 2010 she asked twice for the forms necessary to make a complaint of harassment, but was not provided with them. She took the matter no further. It was not made clear whether the employee that Ms Kraus had spoken with was available to give evidence.
36. Neither of the two witnesses who were friends of Ms Kraus gave evidence of any apparent distress on her part related to her employment prior to the weekend of 24-25 April 2011, when she thought her employment was about to end, except on the occasion when she wanted to return from Tasmania (a matter discussed below). Prior to January 2010, her then partner Mr Bailey was aware that her working hours were apparently unduly long for a receptionist/secretary, and that she was required to accompany Mr Menzie on business trips. He said he was probably too trusting that there was no non-work related conduct on the part of Mr Menzie towards Ms Kraus. I conclude that Ms Kraus made no comments to Mr Bailey to suggest that any untoward or unwanted conduct of a sexual nature took place or that she reported to him conduct which she found distressing (other than during the Tasmanian trip). In particular, Mr Bailey on about 11 December 2009 complained to Ms Kraus of the extent of her interaction with Mr Menzie. That was clearly a specific occasion when Ms Kraus might have complained about Mr Menzie’s conduct. She did not do so, other than to tell Mr Bailey that there was nothing in the interaction and that the interaction was one-sided: advances from Mr Menzie to which she did not positively respond. Mr Bailey moved out of the shared accommodation on 12 December 2009 and ended the relationship, but they remained friends.
37. In assessing the weight to be given to the evidence of Ms Kraus, in my view it is significant that she made no report or complaint of inappropriate behaviour in circumstances when she might readily have done so. There is, in my view, no reason why she should not have done so, at least to Mr Bailey. She was in a relationship with him for much of her employment, but (assessed objectively) she was engaging in conduct with Mr Menzie up to mid-December 2009 which was inconsistent with the relationship with Mr Bailey. If Mr Menzie’s conduct was unwelcome, there is no reason why she should not have discussed it with Mr Bailey. I did not find her explanation for not having done so persuasive, that is that she was embarrassed at what had transpired between herself and Mr Menzie. That conduct with Mr Menzie was putting her relationship with Mr Bailey at risk. Nor do I accept that she felt she had to give in to Mr Menzie’s approaches to keep her job. Even if at an early stage she did not welcome Mr Menzie’s conduct towards her, the fact of her relationship with Mr Bailey could readily have been used by her to Mr Menzie as a reason why she could not continue in that vein. She discussed with Mr Menzie her relationship with Mr Bailey. As I noted, she said she continued to succumb to Mr Menzie’s conduct through fear of losing her job, but I do not think the evidence provides any foundation for her thinking that that was a real fear on her part. In mid-December 2009, Ms Kraus’ mother was diagnosed with a serious illness. Again, that circumstance provided Ms Kraus with a genuine and ready opportunity to distance herself from Mr Menzie’s approaches. His text messages showed sympathy with her about her mother’s condition. On a few occasions Ms Kraus expressed her commitment to Mr Bailey or her mother’s illness as reasons why she could not engage in a particular activity proposed by Mr Menzie. The fact that she did so tends to suggest to me that she did not feel compelled to acquiesce to his requests or expectations of her to the extent she sought to convey in her evidence. Her evidence on that topic is also not consistent with her refusal to take the trip to Sydney in February 2010. At that point, her personal circumstances made her job more critical to her because her mother’s illness left her in a situation where continued earnings were important to her to support herself and her mother, but she was able to decline to go on that trip.
38. As is apparent from the above observations, there are some matters which cause me concern about the reliability of the evidence of Ms Kraus. In addressing the evidence generally, including the directly conflicting evidence, there are further things which have also led me to the conclusion that generally speaking I would not accept much of Ms Kraus’ evidence on contentious issues. I refer to them below.
39. I must point out, however, that I have also taken into account matters which might have led to the opposite conclusion. I mentioned her personal circumstances briefly in [7] above. Although well educated, Ms Kraus was considerably younger than Mr Menzie. She was only 20 years old at the time. Mr Menzie was 36 years old. The job at The Truck Factory was her first full time job, after some time working casually after she left school. She may not have been experienced in what to expect in an employment situation. She was also inexperienced in responding to the behaviour of Mr Menzie towards her in the work environment, particularly where he was in effect the boss. There is the possibility that she innocently and naively entered down a path of accepting Mr Menzie’s advances towards her and then found it difficult to get off that path. Ms Kraus expressed in her evidence that she was not attracted to Mr Menzie.
40. In weighing the competing evidence, I have also taken into account some unsatisfactory features of Mr Menzie’s evidence. I do not accept his evidence that it was not until some weeks into Ms Kraus’ employment that he sought to develop a personal relationship with her. I think that his intention to do so evolved quite quickly, within two or so weeks of the commencement of her employment. His generosity towards Ms Kraus during those early stages is not, as he so expressed, consistent with simply acting as a good employer. His overall evidence gave me the strong impression that he had formed an attraction to Ms Kraus very quickly, and he then tried to develop a mutual relationship although she had told him about her partner. Throughout the text messages there is acknowledgment on Mr Menzie’s part of her relationship with Mr Bailey. I do not accept his evidence that, until she ceased her relationship with Mr Bailey, he was not “coming on to her”. It is necessary to assess the responses of Ms Kraus in that context. I accept her evidence that she did not immediately upon commencement of her employment aim to develop a relationship with Mr Menzie. Nor do I think, in the absence of Mr Menzie’s continued advances, would she have aimed for or pursued a relationship with Mr Menzie. Had the conduct of Mr Menzie been purely professional from the commencement of her employment, I consider it unlikely that the events and outcomes so described would have occurred. In Ms Kraus’ circumstances, it is easy to accept that in the work environment she was willing to accommodate work requests, and may have been ingenuous in not realising that some of Mr Menzie’s requests and actions went further than routine work expectations. That observation lessens in strength as the advances became more obvious. I discuss that below when considering the evidence in a roughly chronological way. There were also parts of Mr Menzie’s evidence, especially dealing with the four occasions on which he said sexual intercourse occurred, which were not particularised before the hearing and which were not put in detail during the cross-examination of Ms Kraus. That has caused me anxious consideration about the reliability of his evidence, as indeed has his cross-examination exposing that he had some difficulty in identifying with precision the dates upon which those events occurred (although not as to the detail of the events themselves). I have however found that those occasions did occur on the evidence as a whole.
41. Finally, in these preliminary observations, I note that none of the office staff were called to give evidence, either by Ms Kraus or Mr Menzie. In certain respects they may have tended to confirm the evidence of one or other of them, although probably only on marginal details. I have not drawn any inference from the absence of any of those potential witnesses that their evidence would not have supported the evidence of Ms Kraus or Mr Menzie. I assume that, if any of them were available to give evidence, what they might have said was either not sufficient enough to materially advance the case of either party or was “up and down” on their respective cases in some relatively minor matters.
42. As I indicated, I find that Mr Menzie initiated the contact with Ms Kraus that extended beyond a normal employer/employee relationship. That is not consistent with his evidence that Ms Kraus first signalled to him an interest in him personally. That may have been wishful thinking on his part. I find that Mr Menzie felt personally attracted to Ms Kraus, and that she in response did nothing to discourage that interest; she regarded him as a nice person and their informal conversations extended into matters beyond work topics. The text exchanges between them apparently commenced in late September 2009, and are apparently routine and intermittent until early November 2009.
43. It is now appropriate to consider the events subject of Ms Kraus’ complaints in a roughly chronological order.
44. There was an occasion in late September 2009 when, after a truck was dropped off by Mr Menzie at a location, and Ms Kraus had followed so as to take Mr Menzie back to work, Mr Menzie said he wished to stop at the Sefton Plaza Shopping Centre to look for a birthday present for his father. Whilst there, he saw Ms Kraus looking at a perfume display and purchased a bottle of perfume and a soft toy for her. I accept that she was reluctant to accept those gifts, but was persuaded by Mr Menzie to do so. They returned to The Truck Factory yard. Mr Menzie said his actions were simply a nice gesture. I agree with counsel for Ms Kraus that the gifts exceeded the routine behaviour of an employer, but they did not amount to conduct which constituted sexual harassment. It was not argued that those gifts were of a sexual nature. They signal, in my view, Mr Menzie’s interest in Ms Kraus beyond an employer/employee relationship. Ms Kraus did nothing at the time to encourage Mr Menzie to believe that she might be interested in him on a personal level.
45. A few days later, on about 1 October 2009, Ms Kraus attended an agricultural field day on the Yorke Peninsula. She attended with Mr Menzie and other employees of The Truck Company. She was to assist in handing out promotional material. She was driven there by another employee. Mr Menzie asked Ms Kraus to go on a brief helicopter ride, and then showed her around the stalls to introduce her to others. He bought her a bag of Kangaroo Island products, and a jacket. He described that conduct simply as encouraging Ms Kraus as an employee. That may be a fair characterisation of the helicopter ride and the purchase of products. However, in respect of the jacket it is hard to fit that conduct into that category. In my view, it also indicates Mr Menzie was trying to develop a relationship between Ms Kraus and himself beyond that of employer and employee. I do not accept that that was simply consistent with his generosity to all his employees. I accept that she protested about his generosity but eventually accepted the gifts on that day. Again, had the conduct stopped there, I would reject the submissions on behalf of Ms Kraus that it constituted sexual harassment because I do not consider it was not conduct of a sexual nature. It is sometimes a difficult line to draw as to whether particular conduct is of a sexual nature. As counsel for Ms Kraus accepted, it is not per se unlawful for two employees to form a personal relationship, or for an employer (treating Mr Menzie as the boss, in colloquial terms) to form a relationship with an employee. Nor is it unlawful per se for an employee in an appropriate manner to invite an employee to a function at a personal level, or to express in an appropriate way an interest in a personal relationship with an employee. Of course, in such circumstances, the relative position of boss and employee require the employer to be careful not to take advantage of that status, and to be mindful of the circumstances of the employee. The conduct is to be assessed in its context. Having regard to the circumstances, the nature of the purchased gift and that the occasion took place overtly, I do not think there were any sexual undertones in the conduct. The conclusion would or might be different if there were repeated unsolicited gifts, which in fact were unwelcome, even if the gifts were not patently sexual in nature, as their character may be determined from all the circumstances.
46. The next events identified took place on 7 November 2009. The occasion itself was the subject of detailed evidence.
47. The text messaging between Mr Menzie and Ms Kraus obviously became more frequent from about the start of November 2009. Relevantly to the events of 7 November 2009, certain text messages on 5 November 2009 were apparently initiated by Ms Kraus, referring to having passed a licence test. That apparently prompted a text from Mr Menzie asking her if she had plans for the weekend. Her response was that she did not have anything planned from the weekend so that “shouldn’t be a problem. What’s up? Work?” Mr Menzies’ reply made it clear that it was not a work commitment. His text said: “No, it’s not just tell me which day suits and I’ll pick you up ...”. I infer the outing on 7 November 2009 was the result.
48. Mr Menzie asked Ms Kraus to go with him for a day jet skiing on the Port River so he could get to know her better. Ms Kraus accepted. She said she was “simply being nice and thought nothing much of it”. She also said she was told that, on the next occasion, Mr Menzie would invite both her and her partner, Mr Bailey. He knew about her relationship with Mr Bailey from their conversations. There is no apparent reason why Ms Kraus should have felt under pressure to accept the invitation for that day. I do not accept that she felt that her employment was at risk if she did not accept the invitation. Mr Menzie says he invited Ms Kraus to include Mr Bailey on the day trip, and she said she would come alone. In either event, Ms Kraus went alone with Mr Menzie but did not feel under any obligation to do so by reason of her employment. I do not accept that she was so naïve as not to realise Mr Menzie wanted to get to know her on a personal basis.
49. Mr Menzie collected Ms Kraus from her home and they had breakfast together at a café about 9:00 am. Ms Kraus said she needed to buy some swimwear, and at the shopping centre where they had had breakfast she tried on a bikini which she liked. She said it did not fit her well, but Mr Menzie bought it for her. He refused to return it, even though she did not want it. She went to another shop “Bras N Things” to try on other bikinis, and she bought a bikini. Whilst she was doing so, Mr Menzie bought her some “playboy underwear and pyjamas”. When she was given the parcel, she told him to return them but he asked why he could not do something nice for her. She eventually thanked him for the gift.
50. During the day, Ms Kraus says that she reluctantly allowed Mr Menzie to rub sunscreen on her back and legs, and twice to massage her neck and back. He was, she says, very forceful that he should let him do that. She also acquiesced in allowing him to photograph her near an old ship wreck, as well as on the surf ski. She said she made up an early time to meet her boyfriend to bring the occasion to an end. She was taken home by about 6 pm.
51. Mr Menzie agreed with much of that evidence. He agreed that Ms Kraus was apparently reluctant to accept the gifts, but he thought that she was embarrassed because she could not afford them herself. In her own evidence, Ms Kraus said at one point that, at the field day on the Yorke Peninsula, she had said that she was embarrassed because she could not reciprocate. Mr Menzie agreed that each of them had put sun block on the other, but he denied massaging Ms Kraus or being forceful in any way. He said the photographs were taken without objection and Ms Kraus in fact asked for a copy of one or more of them. In fact, as the evidence shows, she had access to all of those photographs at the time when she prepared her “Chronology”.
52. I do not accept Mr Menzie’s evidence that, to this point, he was simply behaving as a good employer in a way in which he typically treated his employees. A day out jet skiing alone with a young female employee does not fit well with his description. I have noted some doubt about that question when he bought the jacket for Ms Kraus on the field day. Certain of the items which he purchased for her on this occasion also, in my view, demonstrate that his conduct was beyond that of a conscientious employer. In my view, he was endeavouring to develop a relationship with Ms Kraus beyond a work relationship. For her part, by her decision to go on that trip, she had signalled to him that she was prepared also to reciprocate that interest or at least to explore that possibility. I accept his evidence that Ms Kraus indicated that she would go on that trip without her boyfriend, and I accept that Mr Menzie in some form had explored the possibility of her boyfriend coming with them. Both agreed that the topic arose. It is unlikely that Mr Menzie would have said to Ms Kraus that she must accompany him alone on that occasion, but that he would invite the boyfriend on a subsequent occasion. In my view, the discussion on that topic was more general than either of them said. One text refers to going on the jet ski. Mr Menzie said he would “take u out then when I come back from tas ill take Alex out on ski ...”. Be that as it may, Ms Kraus clearly agreed to go with Mr Menzie on that occasion. Having done so, she could not have misunderstood his interest in her, demonstrated by the conduct they mutually engaged in on that day and his purchase of the reasonably intimate items for her.
53. Mr Menzie’s conduct with respect to the purchase of gifts, and certainly the application of sun block and massaging said to have taken place, clearly fell within the definition of conduct of a sexual nature. I observe, for the purpose of my consideration of the question of sexual harassment, that Ms Kraus in the series of texts leading up to that occasion introduced some comments about her boyfriend at a personal level, and also indicated that she did not have any “swim stuff” and Mr Menzie suggested they would get some bathers on the way, as well as breakfast.
54. Ms Kraus was aware that that occasion was a social outing, and that only she and Mr Menzie would be present. She anticipated buying a bikini (although not that he would select it and pay for it). I do not accept her evidence that she demonstrated reluctance to Mr Menzie applying sunscreen to her, or to some degree of personal contact, or to being photographed.
55. At this stage in the relationship between Ms Kraus and Mr Menzie, I am inclined to accept the evidence of Ms Kraus that she regarded certain of his behaviour as unwelcome: the purchase of the bikini and other items, and the level of physical contact between them. That may have been because she had not anticipated the degree to which Mr Menzie wanted contact with her, even though she willingly went out with him on that occasion. But, having regard to the occasion itself which she chose to participate in, and because I find that she did not convey any discomfort to Mr Menzie (except as to the purchase of the clothing), I think that a hypothetical reasonable observer would not have anticipated that she would be offended, humiliated or intimidated by his conduct. I have reached the opposite conclusion about his purchase of the clothing (other than the bikini). In my view, the underwear purchased was of such intimacy as to lead the hypothetical reasonable observer to the view that Ms Kraus would be offended by that purchase at that time. I do not include the bikini in that category because Ms Kraus anticipated buying swimwear and had tried on that particular bikini (although she did not choose to buy it).
56. In my judgment, therefore, to that limited extent, Mr Menzie engaged in sexual harassment of Ms Kraus on that occasion. Given that the opportunity for Mr Menzie to have Ms Kraus go out with him only arose because of the employer/employee relationship, I consider that conduct contravened s 28B of the SD Act.
57. There is a further exchange of texts on 9 November 2009 when Ms Kraus texted Mr Menzie to indicate that she would be unable to meet as arranged for that evening because her boyfriend had decorated the house with Christmas decorations and was preparing a meal for her. The significance, to my mind, is that she was apparently comfortable to decline an invitation from Mr Menzie even though her evidence more generally was that she was at all times overborne by his insistence that she engage in such activities because of a feeling of insecurity in relation to her employment.
58. The extensive text messaging between Ms Kraus and Mr Menzie then continued over the period of time at least to about the end of February 2010. It was intermittent. At times the texts disclosed a degree of intimacy, mostly apparent from Mr Menzie’s texts expressing his feelings, and sometimes acknowledging that his feelings weren’t reciprocated by Ms Kraus as he wished. There is not in the texts any obvious suggestion of Ms Kraus being discomforted by any of the communications. There is no suggestion of her endeavouring to terminate the communications. On occasions, she initiated them. The general picture from her texts was that she was responsive, chatty, and informative. She spoke to Mr Menzie about personal things in an apparently unrestricted way. The texts from Ms Kraus, far from indicating any apparent desire to curb the level of communication or its content, point the other way.
59. The next significant occasion identified by Ms Kraus in final submissions as principally indicative of sexual harassment took place on 19 November 2009 at Port Wakefield. For work purposes, Ms Kraus followed Mr Menzie to Port Wakefield so that he could get a ride back once he had dropped off a truck which he was delivering.
60. It was a very hot day. On the return journey Mr Menzie pulled in at the Port Wakefield River. They stopped and he took some photographs of some small crabs at the waters edge. He then undressed to his underwear and went in for a swim. He urged Ms Kraus to do that as well. She said she was reluctant to do so, as she is not a good swimmer and it did not look like particularly clean water. He encouraged her to do so (she said in her evidence) to the point where she described him as “badgering her and wearing her down”. He also urged her to swim in her underwear. She did so, but reluctantly. She claims that he then came up to her and wrapped his arms around her.
61. When they returned to the truck depot, she says that Mr Menzie then discouraged her from going home immediately until her clothes were fully dry. Whilst waiting in the depot, they watched television for a little time and then he started to massage her shoulders. After considerable urging from him, and against her better judgment, she also lay on the table where he started to massage her further for a few minutes. She says that he made her feel so guilty as though she was a bad person if she did not succumb to his wishes to “do a nice thing”. After some time, she left and returned home on the basis that she needed to be home to meet her boyfriend. Mr Menzie invited her to contact him over the weekend if she was bored.
62. On this Port Wakefield occasion, Mr Menzie agreed that Ms Kraus was reluctant to swim because of concerns about getting her hair wet, having no bathers, and staining her clothes if she swam fully clothed. He also agreed that she needed some encouragement to get into the water and that he pointed out that she might stain her clothes if she did not undress. Nevertheless, he described that they were in the water and kissing and cuddling for about a half an hour until others arrived at the site. He denied having put any pressure on her to do that. He disputes that she was reluctant or upset or angry in any meaningful way. He agreed that he suggested she stay at work a little after they had returned to let her clothes dry out. They stayed at the depot for about an hour. He agreed that each gave the other a shoulder massage.
63. In respect of the conduct of Mr Menzie on this occasion, there is no dispute that it was conduct of a sexual nature. Indeed, that is generally acknowledged in respect of all his conduct of which there is a specific complaint up to the trip to Sydney on 12 to 13 February 2010. I shall not therefore remark on that issue when dealing with subsequent events. The contest is whether the conduct amounted to sexual harassment under s 28A and/or sex discrimination under s 14(2) of the SD Act. Mr Menzie says the conduct was not unwelcome to Ms Kraus, and in the circumstances, a reasonable person would not consider that she would be offended, humiliated or intimidated. He further contends that in fact she was not offended, humiliated or intimidated by his conduct.
64. I also consider that the events of 19 November 2009 amount to sexual harassment. The decision to stop and swim in the river was unprompted. It was on a working trip. Ms Kraus was not asked if she wanted to stop for a swim. Even if the relationship between Mr Menzie and Ms Kraus had by then progressed to the point where, socially, they had engaged in sexual intercourse (as I have so found to have occurred), Mr Menzie had no mandate to expect Ms Kraus to participate in a spontaneous swim in the circumstances of a work related outing in a public place. There is no evidence that she did other than acquiesce in stopping at the Port Wakefield River. She was reluctant to swim, but was, even on Mr Menzie’s own evidence, cajoled into doing so. I accept Ms Kraus’ evidence that she regarded that conduct in the circumstances as unwelcome, and I think a hypothetical reasonable observer, even knowing of their social relationship, would have anticipated that Ms Kraus would be offended or humiliated by the events there. I think it was a case of Mr Menzie pushing too hard to pursue a personal relationship on a work trip. However, those events having occurred, the conduct later in the day on the return to the depot does not fall into the same category. That conduct was in private, and I reject Ms Kraus’ evidence that what then transpired was in any sense against her will. She had been put into the situation of having to dry off, but thereafter I do not accept that she was unwilling to be massaged.
65. The significance of the two matters of sexual harassment identified, that being the purchase of lingerie on the jet skiing outing, and the conduct identified immediately above, must be measured in part by the ongoing text messaging between Ms Kraus and Mr Menzie and their relationship.
66. There are extensive text exchanges between Mr Menzie and Ms Kraus on the following day, Friday 20 November 2009 from 7.48 pm until 10 pm. There is not a hint of animosity, discomfort or reluctance on the part of Ms Kraus in those communications. One of those text messages, for example includes the following: “I am awesome!! lol [laugh out loud]. I will, have a gud nyt ok. If u get bored giv me a holla”. Ms Kraus said that she was simply being polite. The terms of the text is obviously not consistent, in context, with such an explanation. Nor do I accept that she communicated in that way in an endeavour to ensure that her job was secure.
67. As it was the subject of specific cross-examination, it is also desirable to refer in a little more detail to certain of the text messaging on 20 November 2009. There are some bantering texts in which Mr Menzie appears to complain of not having been invited to a function to which Ms Kraus was going to or was conducting. Mr Menzie towards the end of that exchange said: “Anyways you dont have to answer to me after hrs lol ha ha u have to answer to alex ha ha” to which Ms Kraus responded cursorily: “Ok bye”. That prompted a text from Mr Menzie: “You shitty with me”. The text from Ms Kraus was not consistent with the tone of other texts, and no doubt prompted that question. She promptly replied however to the contrary. The immediately following text messages from Ms Kraus revert to the bantering tone of the earlier texts, so in my view there is no indication of any irritation or caution on her part in her terms of communication with Mr Menzie.
68. It was about the start of November 2009 that Mr Menzie says that the first occasion of sexual intercourse took place. He said that he considered from reasonably early in her employment that Ms Kraus was interested in him personally. Certainly it is apparent that he was interested in her. The evidence, including the text messages tends to suggest by early November 2009 that they engaged in significant personal banter by text. Both agreed that Ms Kraus worked after hours willingly, and spoke about non-work related matters. According to Mr Menzie, Ms Kraus visited his house on a few occasions prior to November 2009. On one occasion about the start of November, she again visited his house at his invitation. They chatted for a while. She and he went to his bedroom where they had intercourse. The second occasion of sexual intercourse took place in similar circumstances within about a week. Each of those occasions occurred before the Melbourne trip on 27 to 29 November 2009.
69. As mentioned, I accept Mr Menzie’s evidence about the fact of Ms Kraus and him having sexual intercourse on four occasions. Although not all of his evidence was impressive, or accepted by me, overall I found his evidence more satisfactory than that of Ms Kraus for the reasons given. Although he was unable precisely to date those occasions, I did not think his cross-examination exposed any reason to doubt the fact of the events having occurred. He gave a detailed and overall consistent account of those two occasions. He did not attempt to “fill in” details which he did not fully recall during the cross-examination. Ms Kraus denied the events, but agreed that she had been to Mr Menzie’s home on several occasions. The evidence points to Ms Kraus being asked to work late from time to time, and occasions where Mr Menzie paid her in cash to avoid having to include those hours on her timesheet although sometimes that occurred (including on interstate trips). At least on one occasion Ms Kraus discussed with Mr Menzie how she should record her after hours time so the other staff would not see that she had been paid for it. The text messaging reveals a closer relationship than simply employer/employee or simply co-workers. The conduct of Ms Kraus in Melbourne on 27 to 29 November 2009 and her preparedness to go to Tasmania on a non-work trip with Mr Menzie exhibits a mutual relationship. I refer in more detail to those events below.
70. It is also convenient to record at this point that I also accept Mr Menzie’s evidence that he and Ms Kraus had intercourse on two further occasions: on the Sunday morning of 29 November 2009 in Melbourne, and in December 2009 at her place after work hours, subsequent to her boyfriend moving out. Mr Menzie’s description of the occasions was detailed, though the date of the occasion at Ms Kraus’ place was not pinpointed. The cross-examination was directed to showing he did not have the opportunity to have intercourse with Mr Kraus on the fourth occasion, but he was not exposed as being in error about any detail, nor because he had no or little knowledge of her home. I also note that the cross-examination of Mr Menzie about the first occasion of sexual intercourse between them did not adduce any material which in any cogent way caused me to doubt Mr Menzie’s evidence on that topic.
71. The next occasion of focus in submissions is the trip to Mount Gambier on 22 November 2009.
72. The occasion appears to have been prompted by Mr Menzie asking Ms Kraus by text whether she would be interested in working on Sunday, 22 November 2009. The text message indicated that she would be paid in cash for a trip to Mount Gambier and back. It was to collect a truck. The text also suggested that it was an opportunity for her to “learn a few things about the towing side of things”. He said in the text messages that if she needed a nap she could sleep in the bunk at the back of the cabin on the way back from Mount Gambier. Ms Kraus by text agreed she would go and was told she would be collected at 7 am the next morning. I note that the text messages exchanged on the days immediately following the return from Mount Gambier conveyed no sense of recrimination or reluctance on the part of Ms Kraus at all. They are in a similar bantering tone to the earlier text messages.
73. Ms Kraus described an uneventful trip to Mount Gambier, collecting the truck, and then stopping in Mount Gambier after the truck had been collected to attend a party at a friend of Mr Menzie. They apparently stayed quite some time and did not leave until 9:00 pm or thereabouts. She moved into the single bunk at the back of the cabin and went to sleep. Some time later, she complains that she noticed the truck was parked off the side of the road and Mr Menzie was sliding into the single bunk with her. He said he needed to rest also. She says she offered to go to the passenger seat but he would not let her get up, and eventually just lay with her placing himself very close to her. She complains that she felt very uncomfortable with that experience. At some point, she said Mr Menzie expressed that he liked her a lot and she replied that that was a problem because he was her employer. Eventually she sat in the passenger seat and he returned to the driver’s seat and resumed driving. They returned to Adelaide, arriving about 5:30 am at The Truck Factory storage yard. She then complains that Mr Menzie refused to take her home, but took her back to his home where he offered her a shower (which she refused). She said that she protested vigorously that she did not want to stay with him and asked him several times to take her home but he refused and she was told to sleep in his bedroom. She did so. She chose not to walk home because she did not feel safe walking home at that time of the morning by herself, so she thought she had no choice. After a few hours, he prepared to go to work. He gave her the day off and took her to her home on his way to work. She said it was awkward to explain to her partner why she was not home earlier.
74. Mr Menzie’s version of events was that Ms Kraus, on the way back from Mount Gambier saw that he was tired and invited him to sleep into the “bed box” or “sleep box” with her so he did. He did not impose himself upon her. He also said that he took Ms Kraus to his home following that trip in the early morning with her agreement to avoid her having to explain to her boyfriend why she had got back from Mount Gambier at such an odd hour. They slept together in the same bed for a few hours before he returned her home. He said she was stressing about how her boyfriend would react to the timing and arrangements that she had entered into. He agreed that he paid Ms Kraus in cash for that trip because her involvement was not known at work and he would have found it awkward to explain it.
75. The issue is whether the particular conduct of Mr Menzie in endeavouring to sleep with Ms Kraus in the cabin bunk, and then in not taking her home until she had slept at his house for a few hours in a shared bed amounted to sexual harassment. That depends on whether Ms Kraus was unwilling to participate in those activities. It also depends upon my finding that her version of events is to be accepted over Mr Menzie’s recount. This is an instance where Ms Kraus and Mr Menzie gave directly conflicting evidence about whether Ms Kraus agreed to that conduct.
76. I have reached the view that Ms Kraus did not invite Mr Menzie to share the cabin bunk with her, notwithstanding my finding that by this time they had commenced a sexual relationship. It was a relationship which, in my view, Mr Menzie of the two of them was more anxious to pursue at this time. Ms Kraus was still living with her boyfriend, even though she was also at some level exploring a relationship with Mr Menzie. There is no especial reason why she would have wanted to share a cramped bunk. She was trying to sleep. The description of the cabin bunk suggests it was a small and uncomfortable space. There may have been some conversation between Mr Menzie and Ms Kraus about him being tired and needing a rest, and there may be some scope for him regarding her comments as not discouraging him from sharing the bunk with her. But the measure of unwillingness is a subjective one. Overall, I am satisfied that Ms Kraus did not invite Mr Menzie to share the cabin bunk, and regarded Mr Menzie’s conduct as unwelcome. As the trip was a business trip, and the cabin bunk so confined, I think a hypothetical reasonable observer would consider that, in the circumstances, Ms Kraus would have been offended, humiliated or intimidated by that attention. Consequently, it constituted sexual harassment.
77. I have not reached the same conclusion about Mr Menzie’s conduct when they arrived back in Adelaide at about 5:30 am. There is an air of reality in Mr Menzie’s evidence that Ms Kraus was worried about explaining her early morning arrival to her boyfriend. There was no other cogent reason identified as to why he would not otherwise have dropped her home. It is not suggested that, at his home, he and Ms Kraus did other than sleep. I am not satisfied that Ms Kraus was unwilling to return to Mr Menzie’s home for a few hours sleep in the circumstances.
78. Before turning to the next event which was the subject of specific evidence, I refer to a somewhat recurrent theme in Mr Menzie’s texts.
79. In the last week or so of November 2009, and from time to time after that, Mr Menzies sent Ms Kraus several very coarse and sexually explicit images. They were unsolicited. They did not attract an empathetic text response, nor did they attract a clear adverse response. In most instances, Ms Kraus seems to have ignored those crude images, and also largely to have ignored his sometimes very coarse jokes. On one occasion she expressed her distaste in a light handed manner for the picture images Mr Menzie had sent. However, they did not inhibit Ms Kraus from otherwise continuing with a bantering tone of exchange in their quite extensive text messaging. Ms Kraus did not give clear and persuasive evidence that they were unwelcome. Relatively little was made of them in her evidence. The text messages sometimes used quite coarse but commonly used language.
80. In my judgment, the sending of that material to Ms Kraus, as a young female employee, amounted to sexual harassment. It is not necessary to detail or describe the content. The occasions are referred to in the orders. I accept the evidence of Ms Kraus that their receipt was unwelcome, and I found support for that finding from her text messages by their relative silence (even taking into account the occasion when Ms Kraus texted to Mr Menzie a coarse joke). I have not included one text image of 18 February 2010, although I suspect that exhibit erroneously attributes its source to Ms Kraus. There was no evidence specifically about it. I conclude then that a hypothetical reasonable observer in the circumstances would anticipate that Ms Kraus would be offended or humiliated by the text images sent by Mr Menzie to Ms Kraus on 22 and 26 November 2009 and 1 December 2009.
81. The next identified event was a trip to Melbourne on 27 to 29 November 2009. If ever a point had been reached at which it was apparent to Ms Kraus that Mr Menzie wished to have a personal relationship with her, it was the trip to Melbourne on 27 to 29 November 2009. Ms Kraus says it was a work trip to “find new contacts for the company to do business with for uniforms”. She was with him because she was in charge of uniforms and she could meet some interstate suppliers. She felt a little uneasy about going on such a lavish business trip. She left the arrangements to him. I do not accept that she was so ingenuous.
82. She and Mr Menzie travelled together. On arrival in Melbourne, Mr Menzie picked up a “flashy convertible car” for their use whilst in Melbourne and they stayed at the Crown Towers. It was a luxurious suite. There was only one bed. Ms Kraus says she asked him to fix the bedding arrangements so they could sleep in separate beds and he said he had already paid for the bed. She says she was shocked because she did not want to stay in the same bed as her boss. She said Mr Menzie insisted that she slept in the bed rather than on the couch or on the floor. She claimed to be weak and powerless, like “some sort of animal he owned”. She protested that it was unprofessional and she felt uncomfortable. Eventually she gave in and stayed in the bed with him. I do not accept her evidence, broadly for the reasons already given. I think it unlikely, in the context of the circumstances that had preceded this trip, that she did not have an expectation that Mr Menzie planned a trip which was in essence a social weekend. In the course of that visit, Mr Menzie suggested having a spa together, later in the evening on their arrival. There was a spa bath in the suite. She said she then realised that he was going to force her to have a spa but she refused. He complained that he had spent so much money on the suite and she should take advantage of it. He persisted and eventually, again, she gave in. She got into the spa wearing a bikini and Mr Menzie was unclothed. He prevented her from leaving the spa and insisted on massaging her shoulders. She felt powerless. She got out of the spa and commenced to have a shower and Mr Menzie joined her. He attempted to soap her himself. She got out, dressed, and then got a pillow and blanket to sleep on the floor. She said she was scared of him, and when he firmly insisted that she get into the bed, she complied. She says she resisted his advances to get close to her. However, other evidence described below causes me to reject how she explained that occasion.
83. The following day, 28 November 2009, they went shopping together. Mr Menzie insisted on buying her a “friendship ring”. Ms Kraus said in her evidence that she protested against its purchase. He dismissed her complaints and eventually selected a ring for her. She said, in the presence of the sales person, that it was inappropriate for him to purchase her a friendship ring. Apparently the sales person said that she should be enjoying having someone buy her something. She tried it on. It required adjustment to a slightly smaller size. It was purchased, and they were to return later to collect the ring. It cost $1200. He insisted that she wear it, over her opposition. That evening in the suite, Mr Menzie had champagne for them both. Ms Kraus said she had one glass of champagne, reluctantly, and then showered and changed. She was in her underwear when she was taking some pictures out of the lounge window of the scenery around the hotel. She said she did not think anyone could see her and that she did not feel unsafe as Mr Menzie was “busy in the other room”. Mr Menzie commenced taking pictures of her without her knowing it, and when she found out she was shocked and embarrassed and told him to stop. He simply ignored her, and asked her to pose. She attempted to return from the lounge to the bedroom but he prevented her from doing so. He insisted that she pose so she “did a quick pose” that she could not get out of, then returned to the bedroom and dressed fully. She gave evidence that she thought he may have taken a phone video of her at the time. That was confirmed and the video was received in evidence.
84. Ms Kraus complains that Mr Menzie insisted on her drinking too much champagne. At about 8 pm, Mr Menzie (she says) told her that he loved her. She told him that because he was her boss it “wasn’t right”. He spoke about the age difference between them. She said she did not feel the same way about him. She eventually left the room. She felt uncomfortable. They then went out together to the Skydeck, and then had a meal. They then returned to the hotel suite, and slept.
85. The next morning, Ms Kraus says she awoke with Mr Menzie’s hand touching her vagina. She reacted very negatively and felt violated. However, I have already found that, on that occasion, Ms Kraus and Mr Menzie had consensual sexual intercourse. I reject her evidence about that particular reaction. Ms Kraus then said that during the day, they went shopping, and at Mr Menzie’s insistence went on a horse and carriage ride together. She said she was very embarrassed. She was also upset. Mr Menzie was taking photographs of her during this time. He complained that she would not smile while he was taking pictures. They then returned later that day to the airport and returned home. After leaving the Adelaide Airport, she again told him that she was unhappy that he touched her inappropriately. He said he apologised and thought she was awake and knew what he was doing. She said that he should never touch her again. He dropped her off at home. After that occasion, on 30 November 2011, Ms Kraus texted Mr Menzie, asking him not to be upset with her, and that “I just need a friend right now, that’s all”. I infer that that communication concerned an awkward conversation had between them, perhaps about their differing views of the relationship. Mr Menzie’s reply was “Ok all cool man.”
86. On Ms Kraus’ version of the Melbourne trip, it was a distasteful and unpleasant experience. It could not have left her with any doubt as to Mr Menzies’ intentions towards her. Were it correctly described by her, notwithstanding her asserted feeling of powerlessness or her feeling of inability to oppose him, her subsequent conduct is, in my view, not explainable. Text messages exchanged on 30 November 2009 in the late afternoon and evening included two from Mr Menzie which included very coarse jokes. They do not reflect the attitude of a person who had been put on notice that a relationship which was being pursued by him should be treated with caution. It is also open to observe that perhaps Mr Menzie chose not to recognise that Ms Kraus was a confused young woman, who had communicated that she did not reciprocate his feelings and perhaps did not have the strength or confidence to bring it to an end. That does not affect my finding about the character of the relationship and whether Ms Kraus regarded Mr Menzie’s conduct as unwelcome generally over that weekend. It appears from the sequence of text messages in the evidence that Ms Kraus commenced the texting communications on 30 November 2009. Although there is some room for observing tenseness in the communications between them, Ms Kraus then appears to have initiated the suggestion of them further catching up “some time soon”.
87. I did not find Ms Kraus’ evidence about the Melbourne trip at all convincing. It was clearly not a business trip in any real sense. The photographs taken of her in her underwear whilst she herself was photographing from the lounge area do not depict a person in any distress and are not really consistent with the sense of revulsion and objection to which she referred at length in the Chronology. Moreover, when she was tested about that evidence, and in the light of the photographs of the layout of the room and the phone video recording sections of it, her explanation that she was caught in that room and could not return to the bedroom does not fit at all comfortably with the physical layout of the room as shown. I do not accept her evidence about that occasion. The pictures tend to confirm the evidence of Mr Menzie that, on that occasion, Ms Kraus was dressed as the photographs depicted and willingly and without discomfort moved around the room taking photographs and as requested posed for photographs.
88. Mr Menzie accepts that Ms Kraus was reluctant to choose a friendship ring, but in the context of his earlier evidence that is explicable without supporting her more general complaints of being harassed. He made the point, as the text messages confirm, that immediately following that trip and for the week thereafter the relationship between them continued to be satisfactory. They had a number of showers together on that occasion. I accept Mr Menzie’s evidence that she did not offer to, or threaten to, sleep on the floor, and he did not need to cajole her to share the same bed. He paid her in cash for the Friday of that weekend as her time records disclose. On the Sunday morning, he described that they had intercourse together, contrary to her evidence. Given my views of the reliability of certain of her evidence about that occasion, which are inconsistent in my view with the objective contemporary documentary material (the photographs and the video), I prefer the evidence of Mr Menzie that they had intercourse on that occasion. I also prefer the evidence of Mr Menzie that Ms Kraus was a willing participant in that weekend at the time. It may be that she no longer feels that way. But I have reached the firm conclusion that Mr Menzie’s conduct towards her over that weekend was not unwelcome, and that the hypothetical reasonable observer in all the circumstances would not have anticipated that Ms Kraus would be offended, humiliated or intimidated by that conduct. Those findings encompass the purchase of the friendship ring. I am not persuaded that Ms Kraus did not express concern about that because of its cost, rather than because Mr Menzie wanted to purchase her a friendship ring. Even if I were to take the step of finding that the purchase of that ring was unwelcome, I do not think that it constituted conduct of a sexual nature and I do not think that the reasonable bystander in all the circumstances (that is, the circumstances as I have found them to be) would anticipate that Ms Kraus would be offended, humiliated or intimidated by its purchase.
89. Over the next few days following the Melbourne trip there is a bantering tone in the text messages between them. Mr Menzie again sends some extremely crude photographs, and after enquiring why she had not replied following their receipt, Ms Kraus communicates that she was not talking as she was getting reading for work and expressed her annoyance of being sent messages at various stages that morning. She again does not comment on the crudeness of their content. I have found above that the sending of certain sexually explicit texts amounted to sexual harassment. It appears that Mr Menzie was away interstate on 1 December 2009 during those communications.
90. Given what Ms Kraus described about the trip to Melbourne on 27 to 29 November 2009, it is in my view very difficult to reconcile the readiness with which she was prepared to frequently communicate with Mr Menzie by text on the succeeding days and the terms in which she did so. That observation reinforces my view about Ms Kraus’ attitude to the Melbourne trip. Those messages include one, apparently after his return in which she refers to him as “Hun” (I infer honey). Her communications include elements of gossip and personal expressions as to how she feels. She discusses her apparently unhappy relationship with her boyfriend. On 4 December 2009, she asks Mr Menzie not to embarrass her and to stop buying her things. A short time later (about three hours) the context is a concern about upsetting her boyfriend in circumstances where that relationship is somewhat strained. The communications include how receipts for some of the gifts of Mr Menzie to Ms Kraus should be disclosed to the accounting staff of The Truck Company. They also apparently include comments as to how other staff of The Truck Company are treating Ms Kraus in the context of some suspicion or view about her relationship with Mr Menzie. From 10 December 2009, they also make reference to an anticipated trip to Tasmania. As noted elsewhere in these reasons, they discuss the break-up of the relationship between Ms Kraus and Mr Bailey when he apparently left their shared accommodation on the evening of 12 December 2009, shortly after the Christmas party. They include in late December 2009 expressions of love by Mr Menzie towards Ms Kraus. Those expressions did not attract any negative response. Later in December, too, Ms Kraus starts to give Mr Menzie information about her mother being very ill.
91. There are three further particular events in December 2009 which were the subject of specific submissions on behalf of Ms Kraus to indicate harassing and sexually discriminatory conduct on the part of Mr Menzie. They concern an evening in Mount Lofty in December 2009, a visit to the Barossa Valley early in December 2009 and a visit to Lobethal to see the Christmas lights in the evening of 18 or 19 December 2009.
92. Ms Kraus gave evidence that the occasion to Mount Lofty arose because Mr Menzie asked her to work at his house to write up some lists of uncompleted billed out jobs. She was reluctant to do so, but he insisted and he wanted the tasks completed that night. She then went home and changed from normal work clothes and went to his house to do the work. He was asleep at the time in his bedroom. When he was woken, he said that they would be going to the Mawson Lakes Hotel for tea, and he asked her to accompany him. She agreed. He then drove through to the Mount Lofty car park “to do the work”. According to Ms Kraus, they worked in the car, completing that bookwork. They were there for more than three hours. She was dropped home about approximately or just before 12 pm. Mr Menzie described that occasion as an occasion when they went to Mount Lofty car park for a “kiss and a cuddle”.
93. My finding is that the version of events given by Ms Kraus, including working on bookwork in a parked car in the evening with the assistance of dim lights at Mount Lofty is so inherently unlikely that I do not accept her evidence. Rather, I prefer the version provided by Mr Menzie as to the purpose of that occasion and as to what happened on that occasion. That is fortified by the general view I have formed about the reliability of the evidence of Ms Kraus on contentious issues.
94. Another occasion occurred on Sunday, 6 December 2009. Ms Kraus says that she had told Mr Menzie that she was going through a “rough patch” with her boyfriend because of the amount of time she was spending at work. Mr Menzie asked her if he could take her out the following day, that is the Sunday. She agreed. It is to say the least curious that she agreed, having regard to her previous evidence about what happened on the Melbourne trip. Again, it is not suggested that there was anything about that occasion which would have put her job at risk if she had declined.
95. She was picked up and taken to the Parrawirra Recreation Park, and then to the Barossa Resort and Winery. They then went to Tanunda for lunch. While they were waiting in the beer garden, a work mate happened to be a few tables away. When she saw them, Mr Menzie remarked that they were “busted”. Later in the day, they met Mr Menzie’s brother and a friend and had a dinner with them. She did not get home until late that evening. Along the way, Mr Menzie pulled the car over, apparently to spend some time in the car together. She describes how Mr Menzie tried to kiss her and that she refused. She said the return trip to Adelaide was a tense one, and she barely spoke. She said that all she wanted was to have a professional relationship with her boss and nothing else. She did not convince me of that; it is not consistent with her going out with Mr Menzie on that day at all. They did not return home until almost midnight. I do not accept her evidence, for the reasons already given. It is not reflected in the tone and content of the contemporary text messages.
96. Following the Barossa Valley occasion, the office Christmas party took place on 11 December 2009. By that time, I am satisfied that Mr Menzie felt quite strongly about a relationship with Ms Kraus. It is unclear whether she had any significant feelings for him although, as I have found, she had conveyed to him a general interest in him. I do not accept that her conduct was driven simply by a fear of losing her job or a fear of upsetting her boss. There is no real reason why she should have felt that way. As mentioned, she could readily have rebuffed his earlier approaches, and remained remote and distant. Her text messaging is quite to the contrary. At the office Christmas party, Mr Bailey was in attendance. He became quite drunk, and left early. I suspect that he was somewhat put out with the attention which Ms Kraus was receiving from Mr Menzie and others, encouraging her to remain with them. She went with The Truck Factory staff from the Christmas function to the Grand Hotel at Glenelg. After some time, as others had left, the remaining group went to McDonalds near there. Only four of the staff was present, including Mr Menzie. There was no job related reason why Ms Kraus should stay to the last with that small group, especially if she wanted to distance herself from Mr Menzie.
97. Ms Kraus refers to the series of text messages between 2.41 am and 3.35 am on 12 December 2009 to support her claim that Mr Menzie became upset with her because she rebuffed his approaches on that evening. Those texts show a certain tenseness between them, and Mr Menzie apparently being somewhat upset with her. He also sent her several text messages during the course of that day, although they did not apparently suggest he was upset or aggressive.
98. Ms Kraus however then apparently reinitiated their text communications. On 13 December 2009, she sent a text message apologising for not getting back to him the previous evening and mentioning that her boyfriend had moved out after their breaking up. The communications included various other texts, such as a request for Mr Menzie to send her some of the photographs he had of her, a further request for Mr Menzie to pick her up to take her to work the following day, and in response to a request that he might ring her, “up to u Hun”, all occurring on 13 December 2009.
99. There is some indication in the material that Ms Kraus was reluctant to take a trip to see the Lobethal lights at Christmas, indicating that she was not sure she would like to go for a drive to look at the Lobethal lights that evening, on about 18 December 2009, because she was still sorting things out with her boyfriend. She claims that she eventually and reluctantly agreed to go. They went on a Friday or Saturday evening, had a meal, and then returned to his house because he said he wanted to give her a Christmas gift. She gave him a gift of a toy truck and a Christmas bear. He presented to her a series of bags and boxes. The gifts, as she said, were quite extravagant and in some respects apparently inappropriate. They included lingerie and a pair of purple fluffy handcuffs. Ms Kraus said that she was reluctant to accept those gifts.
100. For reasons which are by now apparent, with one exception, I do not accept that Ms Kraus regarded the conduct of Mr Menzie on any of those three occasions discussed above as unwelcome or that she was in fact offended, humiliated or intimidated by it. The exception concerns the nature of the Christmas gifts, which was obviously conduct of a sexual nature.
101. Even though there was a mutual exchange of gifts, the suggestive nature of the gifts given by Mr Menzie deserves separate consideration. Ms Kraus, in her Chronology said she was “horrified” and she stared at the gifts in shock. She said she did not want to accept the gifts. She said she felt vulnerable, and disrespected. I do not consider that evidence was successfully challenged in cross-examination. In my judgment, that particular conduct constituted sexual harassment as it was unwelcome conduct of a sexual nature in relation to Ms Kraus, and because a hypothetical reasonable person, having regard to all the circumstances, would have anticipated that Ms Kraus would be offended and humiliated by that conduct.
102. In the immediate future, that conduct did not apparently impair the relationship. In the course of that evening, they discussed a trip to Tasmania in the new year.
103. The trip to Tasmania is another occasion where it is very difficult to accept Ms Kraus’ evidence.
104. Ms Kraus and Mr Menzie had been speaking of that trip for some time in December 2009. She said that, because of her mother’s illness, she was reluctant to go. He said he understood that. Nevertheless, he proceeded to make plans which partly included her. He was anxious for her to go with him. There is no foundation for Ms Kraus to have believed that it was a business trip. Given her mother’s illness, and Mr Menzie’s expressed concern and interest in her mother’s health, again she had a perfect opportunity to decline to go if she did not wish to go with him either at that time or at all. He was obviously very anxious to pursue her company. He made a booking for her in the New Year and arranged to meet her when she arrived in Tasmania. She did so. I find that, as they discussed, they were to sleep in a caravan at his parents’ house. It included a double bed. It was a substantial caravan. Photographs taken at the time did not suggest any obvious reluctance on the part of Ms Kraus or any discontent.
105. They then went to accommodation at the Cradle Mountain Lodge. Ms Kraus says that the lodge room had an extra single bed which she sought to claim, but Mr Menzie wasn’t happy about that. She complained that it was unprofessional to sleep together. I think the time had long passed when that was an appropriate or credible response, given that she had gone on the trip knowing that it was not a work trip. I accept her evidence that Mr Menzie had arranged a substantial itinerary, and sought to prolong the time that she was to be in Tasmania longer than she had preferred, given her mother’s illness.
106. Ms Kraus’ evidence then is that, as Mr Menzie’s advances evolved whilst they were in the Cradle Mountain Lodge, they had a fight because she refused to reciprocate, and he stormed off. He left her in the dark by removing the electricity card. Mr Menzie’s evidence accepts that they had a fight, but says that it occurred because Ms Kraus raised discontent about her position in The Truck Company and was seeking to secure a reallocation of her duties and responsibilities at the expense of someone else. It is common ground that the following day she contacted her former boyfriend and another friend to arrange to get back from Tasmania urgently by plane rather than on the Spirit of Tasmania as Mr Menzie proposed. They arrived back in Hobart late in the evening, and Mr Menzie again booked a room with a double bed, perhaps at that time, after the events that had transpired between them, an inappropriate course. Ms Kraus stayed only three days in Tasmania, rather than the two weeks which Mr Menzie had proposed.
107. I do not accept Ms Kraus’ evidence that even though she knew that it was not a work trip she went because she did not want to upset Mr Menzie or lose her job or because she felt she had no other choice. She knew it was a trip to Tasmania for a social time together. She might readily have refused to go without any embarrassment or difficulty.
108. Mr Menzie said that on 6 January 2010, he sent Ms Kraus a text message [not recorded in the text material] in which he said that the argument was his fault. He explained that he did so because that was an easier path to take, and because he wanted to keep the relationship going. I accept that explanation. It was accompanied by the delivery to Ms Kraus of a fluffy toy cat by way of a gift. It shows the extent of his feelings for her.
109. In the meantime, the text messages continued to be extensive, including numerous text messages on 25 December 2009. It is fair to say that on that day, as on many occasions, Mr Menzie was the more frequent texter. It is also fair to say, that Ms Kraus did not in her communications convey a dissatisfaction with, or a negative response or a discouragement to, Mr Menzie. For instance, on Christmas Day she asked him to call her, as her mother wanted to speak to Mr Menzie. After that had apparently occurred, Mr Menzie sent a text which said that he could see her mother as his mother-in-law. The following day, a communication from Ms Kraus included “if ya bored u can call ...”. There are further invitations from Ms Kraus for him to call if he wished to. Mr Menzie’s texts leave no room for any misunderstanding about his commitment to Ms Kraus and to a relationship. His declarations of commitment were not expressly reciprocated, but he was not in any sense positively discouraged from his communications.
110. I am not persuaded that Mr Menzie’s conduct towards Ms Kraus, either in organising the trip to Tasmania or whilst Ms Kraus was in Tasmania contravened the SD Act. Firstly, I find that Ms Kraus agreed to go on that trip knowing it was an occasion to share a relationship with Mr Menzie. I reject her evidence that she had a work-related motivation to do so. She went knowing it was an opportunity for them to spend social time together. Second, I find that Ms Kraus expected to share a bed with Mr Menzie both whilst they were in Hobart and whilst they were touring Tasmania. I reject her evidence to the contrary. That means that the conduct on the part of Mr Menzie in Tasmania in the sharing of a bed was not unwelcome to Ms Kraus. Moreover, I do not consider that a hypothetical reasonable observer in the circumstances would have considered that Ms Kraus would have been offended, humiliated or intimidated by that conduct. Third, I find that the obviously strong argument which took place at Cradle Mountain was not caused or contributed to by any conduct of a sexual nature by Mr Menzie towards Ms Kraus. It was prompted by some discussions between Ms Kraus and Mr Menzie about Ms Kraus wanting to progress in her employment. The subsequent aggressive and unfortunate conduct by Mr Menzie at Cradle Mountain was also not conduct of a sexual nature. Finally, it is necessary to consider separately the conduct of Mr Menzie when he and Ms Kraus returned to Hobart, before she returned to Adelaide. It is a difficult judgment to make about the shared room in Hobart. The context is a bitter break up of a personal relationship (whether temporary or permanent), albeit between a “boss” and an employee. In that context, I do not consider that Ms Kraus was being treated at the time as an employee. In O’Callaghan v Loder [1983] 3 NSWLR 89 at 104, Matthews DCJ referred to the caution required in relation to claims of sexual harassment made by employees who have entered into sexual relationships with their employers, where there is usually “the quality of mutuality”. I do not consider that the sharing of the room and bed (but without contact) on that occasion was secured by any “job related threats” (to use the expression used in that case). There was no element of Mr Menzie trying to take advantage of Ms Kraus, or of her being confronted with a choice influenced by any concerns about her employment prospects. It was simply, on the evidence, the available option in difficult personal circumstances. Further, I do not accept that Ms Kraus was insistent upon not sharing the bed, once the option of a room with only one bed was presented. Accordingly, in any event, the sharing of the bed in the circumstances was not unwelcome to her.
111. Despite the experience of Tasmania, on 18 January 2010 Ms Kraus sent a text which included “can u plz stop avoiding me? I would like to talk if possible at some point ...”.
112. Notwithstanding that there was obviously a serious setback in Mr Menzie’s expectations of a relationship with Ms Kraus which resulted from the events of Tasmania, he asked her to go on a further business trip to Mount Gambier on 21-22 January 2010. He needed to drop off a truck which had been repaired, and asked Ms Kraus to follow him in the work car and they would then share the journey home. Ms Kraus says that she refused to do so and that he should get someone else to do so. She also said that she would need to bring another person with her as she did not trust him after the Tasmanian trip. She suggested she might bring her boyfriend Mr Bailey, with whom she was again having a relationship.
113. Ms Kraus said that she then went on the trip because she had been told that it was a work trip so she had to go, notwithstanding that her mother was very ill and her previous experiences. She said she needed the money. At Mount Gambier, Mr Menzie had apparently booked yet another single room with only one bed. She told him that he would sleep on the floor. They had a further argument late that evening about where he should sleep, and eventually (she says) she gave in and they shared the bed. They eventually got back to Adelaide about 8 pm the following day. She was dropped off home. Mr Menzie described the occasion as being one where their relationship was back on track and he simply did what he had previously done before, namely shared a room with Ms Kraus and a bed although nothing happened while they were doing so. He appreciated that he should not impose too much on her because the damage done to their relationship in Tasmania was still to be resolved.
114. On the whole of the evidence, for the reasons I have given, I prefer Mr Menzie’s evidence about that occasion. With caution, he was seeking to maintain a personal relationship with Ms Kraus. Ms Kraus had given no signal to him, after he had returned from Tasmania, that she did not wish to have some personal relationship with him. Mr Menzie had raised the possibility of the trip, including by text of 20 January 2010 with the comment “... r u still OK 4 that”. He had signalled by text his desire to maintain an intimate relationship, including calling Ms Kraus “possum”. Ms Kraus by text of 21 January 2010 sent him a coarse joke. There is nothing in the text messaging to suggest Ms Kraus wanted a separate room or to distance herself from Mr Menzie. I conclude that Ms Kraus anticipated the sharing of a bed on that trip. I do not accept that the expectation that she should do so was unwelcome. Nor, judged objectively, do I think that a hypothetical bystander would have considered she would be offended, humiliated or intimidated by that conduct.
115. Mr Menzie then proposed a further work trip to Sydney on 12 to 13 February 2010. Ms Kraus said she was reluctant to go, and that she had reasons to stay home to celebrate the engagement of a friend. The text messages of 10 February 2010 confirm her reluctance, and Mr Menzie’s acceptance that Mr Bailey and Ms Kraus were resuming a relationship. He confirmed that it was a business trip, and that he would pay her for the time she was away. Included is a text which says: “I don’t know if its’ a lil soon after bullshit, u n me staying over in Sydney together. Hmm”.
116. Ms Kraus, nevertheless, agreed to go. She says that she asked for a separate bed for the accommodation, but that does not appear in the text messages. That of course does not mean that she did not say that. She says that she thought he would get extremely angry with her and that she could lose her job if she did not attend on that trip. They stayed overnight at the Hilton Hotel in Sydney, where there was again one bed for the two of them. Ms Kraus says that she complained again, that he inveigled her into to going to dinner with some friends, that after the dinner he inveigled her into sharing a spa with him in the room, that he did not respect her and her request for her own bed and that it was the last time she would ever go away with him. The following day, he persuaded her into going shopping, to the Sydney Tower and he gave her a Valentine’s Day gift for the following day, a Valentine’s bear, a necklace and a watch. She said she could not accept them, but he persisted. The business purpose of the trip was to look at a proposed new tow truck, but it is fair to say that there is no apparent reason why it was necessary for Ms Kraus of all the office employees to accompany Mr Menzie on that trip.
117. There are significantly fewer photographs taken of Ms Kraus on that occasion. However, there are photographs of Ms Kraus in the room at the Hilton Hotel including photographs which would not be consistent with her being photographed unwillingly; in one she is seen posing apparently seductively on the bed.
118. Mr Menzie said that Ms Kraus did not challenge him when there was only the one bed provided and he did not say that that was necessary only because there is only one such room in the hotel. He took photographs of her in the room, both alone and the two of them together. None of them show Ms Kraus in an apparently uneasy way and, as noted, in a few of them apparently Ms Kraus poses seductively. I do not think the photographs are consistent with Ms Kraus being uncomfortable in Mr Menzie’s presence or being unhappy with him. If she was uncomfortable, it is hard to explain her seductive poses. Mr Menzie accepted that there was no sexual relationship at that time and that that had ended after the Tasmanian trip. He also accepted or asserted that they were still very good friends. I think he was clearly trying to preserve and enhance a relationship which had been damaged by the events which transpired in Tasmania, and Ms Kraus was not resistant to that opportunity.
119. For similar reasons to those I have set out above at [114] in relation to the Mount Gambier trip on 21 to 22 January 2010, I do not consider that Mr Menzie’s conduct in relation to this trip amounted to sexual harassment.
120. Ms Kraus gave evidence that during February 2010, her work mates regularly asked her about the relationship between herself and Mr Menzie. She said that it was discomforting. It may well have been. At one point Mr Menzie put her in charge of organising embroidery to be done for some uniforms. She says that that had previously been a role undertaken by the office manager, and she therefore felt very uncomfortable taking on that role and had a negative response from others in the office. She spoke to Mr Menzie about that, but he was dismissive of it.
121. A measure of the ongoing relationship is Ms Kraus’ text to Mr Menzie on 15 February 2010: “BTW [by the way] happy V day for yesterday. lol [laugh out loud]”. That is obviously a reference to Valentine’s Day. There were also texts about Ms Kraus’ collecting some turtles which, apparently, had been acquired on the Sydney trip and had been taken by Mr Menzie rather than Ms Kraus. The text messages in mid-February 2010 also do not convey any negative sense in the relationship. There is a request from Mr Menzie to catch up for a drink after work, and Ms Kraus’ preparedness to do so. There is texting about how Ms Kraus would be paid for the Sydney trip. There is an apology from Ms Kraus on 24 February 2010 for being a “bitchy person sometimes”. It is apparent from the text messages later in February and early March 2010 that Ms Kraus’ mother’s illness was deteriorating. The frequency of text messaging tails off over a few days from 4 March 2010.
122. In that time, there was texting and discussion about Ms Kraus going with Mr Menzie and others to the Melbourne truck show. Ms Kraus said she insisted on a separate room if she was to attend. He said that he did not provide that for any of his staff. There were a number of people from The Truck Company proposed to attend. Ms Kraus endeavoured to arrange accommodation for them but could not get sufficient accommodation. Ms Kraus was asked to do promotional work at the event, and agreed because it was one of the part-time jobs she had offered to do before working for The Truck Factory. It is obvious that Mr Menzie wanted her to do promotional work wearing fairly scanty clothing. Ms Kraus made some selection of proposed clothing, and Mr Menzie wanted something more revealing. They were duly ordered, but Ms Kraus was unhappy about wearing them. The accommodation proposed had not been finally settled, and Ms Kraus and Mr Menzie had a disagreement about whether she should share his room. She said she spoke to other members of the staff about that. Ms Kraus said she eventually refused to go on that trip, and after that time Mr Menzie would not speak to her.
123. In fact, there is a text message of 14 March 2010 from Ms Kraus. It refers to her having seen her mother and her mother not being well. It adds:

I don’t think I can in good conscience leave her while she is in this state. If something was to happen I would never forgive myself. I don’t think it’s possible for me to go. I’m sorry.

124. There are only a few more text messages after that time.
125. Ms Kraus says that after the team from the office returned from the Melbourne truck show, Mr Menzie barely spoke to her and she was made to feel uncomfortable. She says that others in the office noticed it.
126. She kept doing her duties in a routine way for some six or seven weeks, up to Friday, 23 April 2010. That afternoon, according to Ms Kraus, Mr Menzie came into the office and said to her words to the effect that Tuesday would be the deciding day on whether she would be there any more. He said she was always speaking to people in the workshop and always on her phone and should not do so. She disputed that and said she was doing her job well. He made other complaints about her work.
127. She then decided not to attend work on 27 April 2010 (the next working day because of the Anzac Day holiday) because she expected to be dismissed. She said she could see no point in keeping the job any more because she had no respect and she wanted to get out of it. She was upset that weekend and her then boyfriend, Mr Bailey told her to go to a doctor. She saw Dr Afari (although as noted above, that was on 6 May 2010). She also claimed compensation. As she says in the Chronology, she also reported sexual assault by Mr Menzie on 29 November 2009 to the Holden Hill Police Station on 26 May 2010. She explained that as the date his harassing conduct started.
128. Mr Menzie says that as a result of a performance review, there were some issues between Ms Kraus and other office staff including whether she did all of the appropriate work. He was not going to dismiss her, but he wanted to have a talk to her together with the office manager at the time. As I have noted, no witness from the then office staff was called to confirm one way or the other any of those conversations.
129. Mr Menzie did not dispute some of Ms Kraus’ evidence about the proposed Melbourne trip. He agreed that she did not go, based on her mother’s illness. He also agreed that he could not guarantee separate rooms for each of the employees, and conveyed that it was likely that they would have to share. He agreed that there were extensive efforts to find suitable accommodation, but that accommodation was very hard to find in Melbourne at that time. However, he disputed that Ms Kraus specifically insisted on having a sleeping arrangement separate from others and not shared by him. It was simply a mutual agreement that she should not go because of her mother’s illness and because he could not guarantee her a separate room. After that time, he said that their relationship remained a friendly one although not an intimate one. He said that he did not “send her to Coventry”. He said he had spoken to her on a few occasions before that about her work performance, including the need to respond to emails and the need to keep the photocopier fully loaded etc.
130. In my view, the events from early March 2010 also do not demonstrate sexual harassment by Mr Menzie towards Ms Kraus. The circumstances in which she decided not to attend the Melbourne truck show were primarily, on both accounts, her mother’s illness. I accept that there was an issue about the accommodation in Melbourne. It was not typical of the other trips which Ms Kraus had taken with Mr Menzie. The evidence indicates that, for the Melbourne truck show, a number of employees of The Truck Company were to attend, that there was a scarcity of available accommodation, and that it was planned that employees would share hotel rooms between them. It is not surprising that Ms Kraus, in her circumstances, should have been reluctant to share accommodation with a number of others. As it transpired, Mr Menzie himself did so.
131. I find that by early March 2010, Ms Kraus had reached, or was reaching, the view that she no longer wanted to have any personal relationship with Mr Menzie. It appears, too, that he had appreciated that fact. The extensive text messaging between them very substantially diminished in volume. It is not necessary to speculate about why that had occurred, although I accept that Ms Kraus from late February or early March 2010 had made a firm decision in that respect. There is no suggestion that, from about that time, Mr Menzie undertook any conduct in relation to her which amounted to conduct of a sexual nature.
132. Ms Kraus went about her work. That culminated in the conversation of 23 April 2010, and subsequently her ceasing to be employed by The Truck Company. Senior counsel for Ms Kraus accepted that the conversation of 23 April 2010 did not amount to a constructive dismissal of Ms Kraus. She abandoned her employment. I am not critical of her for that. That was a matter for her judgment. She was obviously under considerable pressure because of her mother’s deteriorating physical condition and the circumstances she felt she was in.
133. However, in the light of my findings about the limited extent to which Ms Kraus was exposed to sexual harassment in the course of her employment, the last occasion of which concerned the Christmas gifts given to her by Mr Menzie, I do not attribute her decision to not return to work in any way to being a consequence of the sexual harassment which I have found to have been established. I accept her evidence that, from about early March 2010, Mr Menzie avoided significant contact with her. It was part of her job to have contact with him on a regular basis. There was certainly no clear contact beyond formal employment relations. It may be that she perceived that she had been isolated in her place of employment. If that were the case, I do not attribute that to Mr Menzie fearing the consequences of sexual harassment from her. It would be a consequence, if it occurred, simply of Mr Menzie stepping back from the personal relationship and giving effect to her wish not to participate in a personal relationship. The evidence that persons other than Mr Menzie, in that period from early March 2010, avoided contact with Ms Kraus was not sufficiently precise or cogent to justify a finding that she was, more generally, excluded from normal work communications or activities. I do not find that that occurred.

CONCLUSIONS

134. Consequently, I find that The Truck Company and Mr Menzie contravened s 28B of the SD Act by sexually harassing Ms Kraus in the respects specifically mentioned above. Those findings relate to the gifts purchased on the occasion that Ms Kraus and Mr Menzie went jet skiing together on 7 November 2009, the occasion when Mr Menzie urged Ms Kraus to go swimming with him on the way back from Port Wakefield on 19 November 2009, the occasion when he endeavoured to share the cabin bunk of the truck with her on the trip back from Mount Gambier on 22-23 November 2009, the nature of the Christmas gifts he gave to her for Christmas 2009, and the sending of the sexually explicit phone images.
135. It is not established that that conduct caused any real detriment to Ms Kraus. I have found, indeed, that notwithstanding that conduct, she participated at some level in a mutual relationship with him during December 2009, which extended into January and February 2010, albeit with a significant set back due to the events which took place when she was in Tasmania with him in early January 2010, and that that relationship included four occasions of sexual intercourse.
136. I do not find that the conduct identified as sexual harassment amounted to discrimination in employment in contravention of s 14(2) of the SD Act. That is simply because I do not think that, as a result of that conduct, The Truck Company or Mr Menzie discriminated against Ms Kraus by subjecting her to any detriment in her employment or by the terms or conditions of employment which were afforded to her. They were instances of sexual harassment which did not affect her employment in any respect. Specifically, I do not accept that those instances of sexual harassment had any role to play in the conversation which Mr Menzie had with Ms Kraus on 23 April 2010, or of any assessment of the quality of her work in the weeks preceding that period of time. She was able to perform her normal duties throughout the whole of the time of her employment, and her employment came to an end from circumstances which were unrelated to that identified conduct. Consequently, I do not need to address whether she was treated less favourably than, in circumstances that are the same or not materially different, The Truck Company or Mr Menzie treated or would have treated a male person. That issue does not arise.
137. The Court is empowered to award damages for sexual harassment. For the reasons which are now apparent, I do not accept that Ms Kraus suffered any economic loss as a result of that conduct. She did not lose her employment because of it; nor was her employability affected because of it. It played no role in the onset of her illness, first diagnosed on 6 May 2010 or the need for treatment in respect of that illness.
138. I propose to award a small amount of non-economic damages for that conduct amounting to sexual harassment. Seen in context, although it amounted to a contravention of the SD Act, it barely had any adverse personal effect upon Ms Kraus. In my view, an appropriate order for damages for those items of conduct would be $12,000 in total.
139. There is no occasion for exemplary or aggravated damages.
140. I will order that both The Truck Company and Mr Menzie jointly pay damages of $12,000 to Ms Kraus.
     

I certify that the preceding one hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 11 January 2012