| [2022] FWC 487 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying and sexual harassment
Application by Ranmeet Kaur
(SO2021/36)
DEPUTY PRESIDENT BEAUMONT |
PERTH, 22 MARCH 2022 |
Application for a FWC order to stop bullying and sexual harassment – whether alleged harassment occurred ‘at work’ for purposes of s 789FD – conversations occurring while travelling to and from work, phone calls outside of work hours – held to be at work – held that sexual harassment occurred on 3 occasions - held that no ongoing risk of sexual harassment as Applicant no longer employed – application dismissed.
[1] On 30 November 2021, Ms Kaur applied to this Commission for orders to stop sexual harassment and bullying. At the time of making her application, Ms Kaur said she was an employee of Arrgo Pty Ltd, which traded as ‘The Riverton Bar & Grill’ (the Respondent).
[2] Ms Kaur started work at the Respondent in July 2021 and purported to be a chef. Ms Kaur reported into the head chef, a Mr Karamjit Singh (Mr Singh or ‘Gill’), who oversaw the operation of the kitchen. Ms Kaur said that over a period, Mr Singh had asked her for sex, was pushing for her to be his girlfriend, and had informed her that if she did what he wanted then she would not face any problems at work. She had recorded such discussions on her mobile phone and had presented those audio recordings to the Commission.
[3] Furthermore, Ms Kaur reported that Mr Tejpal Singh (Mr Tejpal), a chef who similarly reported to Mr Singh, had bullied her by having a fight with her. In Ms Kaur’s view, Mr Tejpal was siding with Mr Singh, who happened to be his friend.
[4] Ms Kaur’s application under s 789FC of the Fair Work Act 2009 (Cth) (the Act) was made immediately after the Respondent was informed of the purported conduct of Mr Singh and Mr Tejpal. It followed that the Respondent had been unable to investigate Ms Kaur’s assertions before the matter was brought on for conference.
[5] Two conferences were convened to step the parties through the relevant law and to explain the process that would unfold should the matter proceed to arbitration. The conferences were held with the assistance of a Punjabi translator. Ms Kaur spoke English as a second language and whilst undertaking studies in cooking, presumedly in English, she considered she would be aided by the use of interpreter services. An explanation was also provided to the parties about the circumstances in which an order might issue and the type of orders the Commission might make, should the Commission find in Ms Kaur’s favour. In particular, reference was made to s 789FF(1) of the Act, which includes consideration of whether there is a risk that a worker will continue to be sexually harassed or bullied at work.
[6] Ms Kaur was intent on having the matter proceed to hearing. At the time of making the application under s 789FC, Ms Kaur had not been in attendance at work due, it would seem, to issues percolating in the workplace. Whilst Ms Kaur was employed on a casual basis, it was not apparent that she had tendered her resignation or had otherwise been informed that she was no longer required. In fact, the Respondent had offered to move her to a different restaurant in which to work.
[7] In the hearing Ms Kaur expressed that she was no longer employed by the Respondent, had no intent of returning to work at the Respondent, and simply sought a statement of service.
[8] Having concluded that Ms Kaur had been sexually harassed by Mr Singh at work, it was necessary to consider whether to grant an order to stop sexual harassment. No such order is granted. That Ms Kaur no longer worked for the Respondent at the time of hearing was profoundly relevant, as she was no longer at risk of being sexually harassed by Mr Singh at work. It followed that the dismissal of Ms Kaur’s application was warranted pursuant to s 587(1)(c) of the Act. My detailed reasons follow.
2.1 The restaurant
[9] In short, the Respondent is owned by a Mr Mark Graham, the General Manager is a Mr Ryan Mullan, and Mr Singh is the Head Chef. Mr Mullan’s role is to manage the day-to-day operations, venue management, rostering and ordering. 1
[10] Mr Mullan said that he could be considered Ms Kaur’s manager-on[c]e-removed. 2 He explained that in terms of work the only time he ever spoke to Ms Kaur was in respect to when she had not clocked in properly or had forgotten to clock off.3 Mr Mullan said that Mr Singh and the kitchen staff dealt with her.4
[11] While the Respondent addressed in its evidence that its staff were familiar with whom to raise grievances, no direct evidence was presented with respect to training on workplace bullying and sexual harassment, policies or procedures pertaining to the same, or a workplace grievance procedure.
2.2 The work relationship between Ms Kaur and Mr Singh
[12] As observed, it was uncontroversial that Ms Kaur was employed on a casual basis. Whilst Ms Kaur considered herself to be a chef, the Respondent submitted that she worked as a kitchen hand or a cook. The Respondent further submitted that Ms Kaur did not hold the requisite qualifications to be considered a chef.
[13] As a kitchen hand or cook, Ms Kaur worked under the supervision of the Sous Chef, Chef and Head Chef, all of whom could issue directions to an unqualified cook or kitchen hand. Mr Singh was the Head Chef and therefore, ultimately, Ms Kaur reported into him.
[14] Ms Kaur said that in or around October 2021, Mr Singh began picking her up from her house and taking her to work in his car, and on the conclusion of the shift dropping her off. Ms Kaur said that she did not ask Mr Singh to do this, but rather he would simply present at her house, text her that he was there, and wait for her to get into his car. There was disagreement between Ms Kaur and Mr Singh as to whether he would collect her from the front of her house or around the corner from her house. According to Mr Singh, Ms Kaur had instructed him not to collect her from the front of her house as she did not want her sister and house mate observing her being picked up by him. The reason, said Mr Singh, was because Ms Kaur did not want her boyfriend knowing about the transportation arrangement. Ms Kaur denied such arrangement was in place.
[15] It was the Respondent’s view that the relationship between Mr Singh and Ms Kaur was one of a two-way friendship which involved the provision of transportation to and from her home. The Respondent makes the point that at no time did Ms Kaur refuse the transportation. This was the case notwithstanding, said the Respondent, Ms Kaur purporting to have sought advice from her college where she was studying and her sister, about what to do about Mr Singh’s purported sexual harassment.
[16] In response to the suggestion that she had not declined Mr Singh’s offers of transportation, Ms Kaur reiterated that Mr Singh would simply present to her house and that there was a respect factor as well, noting that he was the Head Chef. Ms Kaur said that as Head Chef, he set the roster and therefore could remove her from the roster such that she would lose her job.
[17] The advice Ms Kaur purportedly received from her sister and college, was to record the conversations that Mr Singh was engaging in to prove her case. Ms Kaur said that she recorded the conversations as nobody was going to trust her and she was frustrated. Ms Kaur acknowledges that she did not inform Mr Singh that he was being recorded, but she reasoned that if she had informed him, he would not have said what he had said.
[18] Turning to the audio recordings, Ms Kaur had filed four recordings with the Commission. It was necessary to have all four recordings interpreted and transcribed given that they were predominately spoken in a language other than English. The interpreting and transcription was undertaken by an accredited provider sourced through the Commission. While Ms Kaur sought clarification concerning one of the transcriptions, both Ms Kaur and Mr Singh took no objection to the accuracy of the transcripts, and both acknowledged that they were persons between whom the dialogue was held.
[19] For ease of reference, the transcriptions of the audio recordings were assigned the following titles, ‘Asking to be his girlfriend’, ‘Gill’, ‘Calling in the morning to go out’ and ‘Work performance’. Each transcription is detailed below as is the relevant evidence of Ms Kaur and Mr Singh regarding the transcriptions. Further, it is noted that the interpreter service appears to have added its commentary in brackets.
2.3 Audio recording – Asking to be his girlfriend
[20] Ms Kaur described the following conversation having been held in the car park of the Respondent’s restaurant in or around the end of November 2021. The conversation was held with Mr Singh, and Ms Kaur started recording after Mr Singh has purportedly touched her. Ms Kaur clarified that she did not say the word ‘Dev’. The transcription reads:
[00:00:00.06] Female: Where is Dev with me?
[00:00:02.16] to [00:00:09.11] [Silence]
[00:00:09.11] Female: God is watching
[00:00:11.18] Male: I [inaudible] ...God is watching
[00:00:13.25] Female: Yeah, being Punjabi, he knows it all, we believe in them [voice was not very clear to make sense of the segment]
[00:00:16.23] Male: Tell me? Will you be my girlfriend or not?
[00:00:19.07] Female: Now or ....[ inaudible, she said in very faded voice in the background]
[00:00:19.19] Male: Will you be my girlfriend or not?
[00:00:21.10] [ Joint-popping noise happened in the background]
[00:00:24.29] Male: You are joint popping your fingers.
[00:00:26.13] Male: Answer?
[00:00:30.18] Female: [ inaudible, she said in very faded voice in the background]
[00:00:31.29] Male: Will you be my girlfriend or not?
[00:00:34.14] Male: answer?
[00:00:38.11] Female: Sir, I do not want to have sex.
[00:00:40.18] Male: Your call... or you do not want to become [my girlfriend].
[00:00:43.08] to [00:00:48.02] [Silence]
[00:00:48.02] Male: huu? [means 'say something' by tone of his voice]
[00:00:49.29] Female: Oh yarr! what is in the sex? [she is sounding bothered now]
[00:00:53.15] Male: You [should] tell me, what is in the sex??
[00:00:56.16] Female: Sir, I do not want to? Now I am thinking what I should do?
[00:00:59.27] Male: I am telling you, you don't need to worry about anything. You just leave everything on me?
[00:01:04.06] Female: Do I have to do sex [with you]?
[00:01:05.08] Male: [Uttered an abusive word in the air] Why do you stuck at the same point?
[00:01:10.14] Male: Will you be my girlfriend or not? tell me?
[00:01:14.22] Male: If you will accept to be my girlfriend, you all issues and problems would be my own.
[00:01:22.02] Male: Doesn't matter which way I have to solve it, I will solve it.
[00:01:25.01] Male: Then, you don't need to worry about anything.
[00:01:27.18] to [00:01:34.27] [Silence]
[00:01:35.07] Male: huu? [means 'say something' by tone of his voice]
[00:01:38.25] Female: If I won't accept to be your girlfriend that way [you are asking], would you be torturing me?
[00:01:40.19] Male: No, I won't torture you. But if you become my girlfriend then, Yes, I can say that, Okay, You are special. So, I can do ...little bit up and down.
[00:02:01.10] Male: Will you be [my girlfriend] or not?
[00:02:03.09] Male: Oh please, tell me at least in Yes or No.
[00:02:07.25] Male: Tell me in Yes or No.
[00:02:09.19] Male: I am not forcing you, at least tell me in Yes or No, asking only Yes or No, asking for your wish?
[00:02:14.24] Male: You can utter your wish, right?
[00:02:18.16] to [00:02:28.05] [Silence]
[00:02:28.05] Female: Sir, sex is a big thing for me, okay?
[00:02:29.08] Male: It’s not a big deal for you.
[00:02:33.03] Female: For me, It is.
[00:02:33.28] to [00:02:42.27] [Silence]
[00:02:42.27] Male: Let's make it a small deal.
[00:02:45.16] to [00:02:49.22] [Silence]
[00:02:49.22] Male: It is a discussion between you and me only. You don't need to worry about anything.
[00:02:56.03] to [00:03:01.11] [Silence]
[00:03:01.11] Female: Sir, it was that side.
[00:03:02.14] Male: Where?
[00:03:05.14] Female: Sir, I .....2-3.......[inaudible]
[00:03:08.10] Male: Firstly, what I have asked you, answer me that? At least say it in Yes or No.
[00:03:12.23] Female: Sir, I won't do sex [with you]?
[00:03:16.26] Male: So, it means 'No'?
[00:03:18.29] Male: Yes?
[00:03:20.04] Female: Yes.
[00:03:21.18] Male: Yeah, now you can ask me [what you were asking before]
----End of the Audio-------
[21] Mr Singh recalls there having been a conversation that took place at two different times during the course of the day. 5 One conversation had taken place in the morning and the other in the lunch break.6 Mr Singh said that in the morning Ms Kaur had asked him about being in a relationship with a same sex person, and he explained that to her.7 He also informed her that in ‘normal society a girlfriend sometimes it means a friend who is a girl’.8 Mr Singh stated that ‘[T]his was a normal conversation in the morning’.9
[22] Mr Singh said that Ms Kaur then asked him what she was to him. 10 He said that he informed her that she was ‘more girlfriend’.11 Mr Singh said that Ms Kaur replied, ‘no a girlfriend’.12 Mr Singh cautioned that the recording was not the whole conversation. He said it was the second part of the conversation and it had been cut up.13 Furthermore, he noted that in the recording Ms Kaur could be heard ‘playfully snapping my fingers in the car’.14
[23] At hearing, Mr Singh’s evidence was that he was trying to ascertain from Ms Kaur whether she wanted to be a friend or a girlfriend. Further, he noted that a friend assists to solve problems and that this was a responsibility that came from friendship. Mr Singh said that was all he was trying to explore. Mr Singh continued that he thought that Ms Kaur was more preoccupied on whether or not she was a girlfriend or a friend, and he wanted to move past that to assist her with her problem – which is why, at the end of the recording, he requested that she ask the question she required assistance with.
[24] Mr Singh clarified that the discussion was not work related but was spoken of in the context of friendship. Mr Singh noted that he was unaware that he was being recorded and that he spoke how normal friends talk.
2.4 Audio recording - Gill
[25] Ms Kaur explained that she had recorded the conversation titled ‘Gill’ in Mr Singh’s car. According to Ms Kaur, Mr Singh had picked her up from her house to take her to work but had taken her to another house where he said he needed to pick something up. Ms Kaur reports being ‘irritated’. Ms Kaur said that Mr Singh told her to get out of the car and pushed her into the house. Ms Kaur said that she shouted, came out of the house, and when she got back into the car, she started recording Mr Singh. The transcription of that recording reads:
[00:00:00.00] Male: Do you wanna have sex with me?
[00:00:00.26] Female: NO? [surprisingly]
[00:00:03.02] Male: Why???
[00:00:04.16] Female: I do not like it with anybody. I..I am very loyal. [not understandable]
[00:00:08.28] Male: It's a good thing. You know?
[00:00:11.24] Female: What {is good}? [not understandable]
[00:00:12.26] Male: Being a loyal?
[00:00:14.05] Female: Yeah
[00:00:15.03] Male: I really appreciate that
[00:00:16.02] to [00:00:18.29] [Inaudible due to disturbance in the recording]
[00:00:18.09] to [00:00:22.21] [ Silence]
[00:00:22.21] Female: I do not like it.
[00:00:24.15] Male: what [in very faded voice]
[00:00:24.15] Female: I do not like sex with anybody.
[26] Mr Singh gave evidence at hearing that the transcript should not be taken out of context. He said that there had been another discussion about two minutes prior to the recording in which Ms Kaur had initiated a talk about marital affairs and what happens in a marital affair.
[27] In his witness statement, Mr Singh detailed that Ms Kaur had asked him how he could be with his wife when she (Ms Kaur) was with him. 15 Mr Singh said that he informed Ms Kaur that he could not leave his wife, and when asked if he would marry someone else one day. Mr Singh said that he could not because he had spent so many years with her.16
[28] Mr Singh expressed that Ms Kaur had lured him into a conversation about sexual activity. According to Mr Singh, Ms Kaur spoke about her boyfriend not letting her go to nightclubs and she had asked him whether he, meaning Mr Singh, had sex with someone else.
[29] Ms Kaur denied speaking to Mr Singh about (a) discontent with her boyfriend; (b) extra marital affairs; and (c) whether Mr Singh was having sex with someone else.
2.5 Audio recording – Calling in the morning to go out
[30] Ms Kaur gives evidence that she received a phone call from Mr Singh toward late October 2021 to early November 2021, at approximately 9-9:30am in the morning. From the transcript it is inferred that Ms Kaur was at home at the time given she had awoken. The transcription titled ‘Calling in the morning to go out’ reads:
[00:00:01.18] Male: Yes, Good Morning Tannu, how are you?
[00:00:03.26] Female: Good Morning, sir, Good...and you?
[00:00:05.15] Male: What are you doing?
[00:00:07.27] Female: I was sleeping.
[00:00:11.10] Male: What time to go?
[00:00:11.19] Female: [voice over] Just up.
[00:00:12.06] Male: What??
[00:00:13.14] Female: I am just waking up, now.
[00:00:15.02] Male: Was you sleeping till now? [asked in little disbelieve]
[00:00:17.23] Female: No, I am awake now.
[00:00:19.29] Male: [inaudible] are you at home?
[00:00:22.11] Female: Yes [00:00:23.08] Male: What's the plan?
[00:00:24.26] Female: [inaudible]
[00:00:27.12] Male: Let's go for outing tomorrow?
[00:00:28.25] Female: I have college tomorrow. So, No.
[00:00:30.16] Male: College? I will drop you back at the college by noon time, by 12pm.
[00:00:33.10] Female: Na …na
[00:00:35.21] Male: See, you yourself do not agree to go.
[00:00:37.03] Female: I don't miss the college, sir.
[00:00:39.08] Male: No, no, I won’t let you miss the college. I will drop you back by 12pm, exactly by 11:30am at the front of the college. What else?
[00:00:48.11] Female: Sir, If I miss the College, I will be marked absent for 2 times.
[00:00:52.02] Male: humm [what?]
[00:00:54.18] Female: No, sir, I have to go [to the college]. I have class test on day after tomorrow in the college.
[00:00:58.19] Male: See, you yourself are not agreeing to it. It is on day after tomorrow, on Tuesday, right?
[00:01:02.14] Female: yes,
[00:01:04.09] Male: So, it's not tomorrow
[00:01:02.28] Female: [voice over] tomorrow they [class teacher] will prepare us [the class] for it, also.
[00:01:07.09] Male: You should say like I have an urgent work at home, I have to move the house, excuse anything like this. Also, say, I will be there by 11;00am to 11:30am
[00:01:15.09] Female: No, sir.
[00:01:18.00] Male: huuu [what?]
[00:01:19.01] Female: [inaudible]
[00:01:20.04] Male: It's up to you now, it’s your wish.
[00:01:23.29] Female: [inaudible]
[00:01:24.20] Male: [calling her with nick name Tannu/Kannu] You yourself do not agree to a single thing.
[00:01:27.20] Female: humm,
[00:01:30.15] Male: huuu ['speak something' by tone]
[00:01:30.04] to [00:01:35.18] [silence]
[00:01:35.18] Female: How was it? How were other days [she is referring about busyness at the work]
[00:01:40.01] Male: Yes, it was busy...it was good.
[00:01:47.22] Female: what about Thursday?
[00:01:49.10] Male: What? Say again?
[00:01:49.19] Female: How was Thursday?
[00:01:52.28] Male: Thursday was okay. It was not that busy.
[00:01:56.05] Female: Okay
[00:01:58.12] Male: Normally, it is a busy day, but this Thursday was not that busy.
[00:02:00.14] Female: Yeah, I too [inaudible]
[00:02:03.16] Male: Humm [okay]
----End of the Audio-------
[31] Regarding the abovementioned audio recording, Mr Singh gave evidence that he had been unavailable to take Ms Kaur out for breakfast the day before and that she had become upset by this. Mr Singh said that he contacted her the next day to try and fix things up from the day before – hence why he had asked her for breakfast. In his witness statement Mr Singh stated:
It's a kind of luring me into it. She made the conversation that way that I just participate. 17
[32] Ms Kaur denies there being discussion about going out to breakfast the day before and that he was trying to fix things.
[33] The dialogue commences with the word ‘Tannu’. It is unclear whether this is a term of ‘affection’ but is noted that Ms Kaur had adopted the name ‘Tania’, whilst working at the Respondent business.
2.6 Audio recording - Work performance
[34] It is Ms Kaur’s account that she received a phone call from Mr Singh on a morning in October 2021. Ms Kaur said that the phone call centred on Mr Singh appreciating her work performance. The transcription titled ‘Work performance’ states:
[00:00:01.16] Female: Yes
[00:00:03.01] Male: Yunis? {male speaker uttered someone's name to get confirmation about it from her}
[00:00:05.24] Female: Yes
[00:00:06.14] Male: She also said this to me Last Week, she said to me that Tania's working is very good now.
[00:00:11.20] Female: ohh ...really?
[00:00:13.08] Male: Yes....because…..yes
[00:00:15.04] Female: ahha [ by tone it means "is it?"]
[00:00:15.17] Male: Swear to God
[00:00:16.23] Female: Okay
[00:00:17.20] Male: She said to me she is lot better now. I said, "yes". I said, "yes, day by day she is improving at the job"
[00:00:24.28] Female: oh..ok..ok
[00:00:25.21] Male: Is not it good. Your work is now visible at average level. Right?
[00:00:29.12] Female: hmmm {right}
[00:00:30.09] Male: Do not leave it {work} now.
[00:00:32.16] Female: hmmm {right}
[00:00:31.13] Male: Do you understand?
[00:00:33.03] Female: Yeah
[00:00:34.17] Male: Do not leave it {work} now, do not leave your relationship which you had with your team, do not leave that
[00:00:42.27] Female: Yeah
-------End of the Audio
[35] Mr Singh explained that when he last encountered Ms Kaur, he thought that she had been feeling a bit down, he therefore called her to motivate her. Mr Singh said that is why he informed Ms Kaur that he had spoken to the owner of the Respondent so that he might provide her with some positive feedback. Mr Singh said that having chatted with the boss, he informed Ms Kaur that the boss had observed that her work performance was improving.
2.7 General context
[36] It was Mr Singh’s evidence that there was no physical relationship between him and Ms Kaur. 18 According to Mr Singh they were friendly and joking around.19
[37] Mr Singh said that Ms Kaur was with a boy that she wanted to marry, that she was not on a permanent visa, that she required extra shifts to get home as her brother was sick and her father had passed, and she would send money home to help. 20
[38] Mr Singh recalls sending a text to Ms Kaur at some point in which he stated she ‘looked hot’. 21 He notes that she replied with an emoji. Mr Singh thought the photo had likely come from a profile picture.22
2.8 The incident of 25 November 2021 involving calamari
[39] According to Mr Singh there was an incident on 25 November 2021 involving the slicing of squid tubes. Mr Singh gave the following account in his witness statement:
When this blew up I asked her to go home.
On the day it blew up, there were squid tubes, and everyone was going to break at 3pm. All prep and cleaning should have been done. I told everyone. She was still doing prep for Tej’s section. She was doing squid for him and she was doing it the wrong way and she was cutting it too thick. I didn’t say anything as I was walking past to the office. Then I could hear something happen. I told them to stop arguing – it was a break. We’ll do it when we go back. She asked ‘why is everyone telling me to do this’, then I took her in the office. I asked her what was wrong. She said she was getting bullied. I told her if she is getting told what to do it is not bullying. She said others were not being told what to do. I explained that they were doing things OK. She started arguing. Even the kitchen guys could hear. She started crying. I suggested she go home. It was Thursday, I said take a rest, take a weekend off and we will discuss about it later. She got changed and asked me to drop her home. I said I could not. She said I had to drop her home – ‘no no you need to drop me home’. I told her to take the bus. I said I helped her sometimes but she could not force me to drop her home and then she left, Then she called me later that day. She called me and said that what we did was not right. At this point the claim had not been made. 23
[40] Ms Kaur’s evidence was that Mr Tejpal had been pushing her at work. She said that the incident on 25November 2021 had become extreme when Mr Tejpal had fought with her.
[41] For his part, Mr Tejpal recalled that on 25 November 2021, Ms Kaur had been cutting calamari. He informed her to move fast, and in his view, she took this the wrong way. 24 Mr Tejpal said that Ms Kaur informed him that this was how she cut the calamari and just walked away.25 Mr Tejpal noted that he did not talk to Ms Kaur much. Mr Tejpal said he knew when someone did not want to listen, and when he did talk to her it was ‘just normal’.26
[42] Mr Mullan described not being aware that Ms Kaur had been sent home on 25 November 2021, albeit he acknowledged that Mr Singh had mentioned to him briefly that he had sent Ms Kaur home because she was useless and annoying. 27
[43] Mr Mullan said that having been sent home on the Thursday, Ms Kaur presented to the Respondent business on the following Monday. 28 Mr Mullan said that Ms Kaur presented with her sister and her boyfriend, asking to speak to Mr Owen.29 Mr Mullan said that as Mr Owen was busy, he offered to assist.30 However, as Ms Kaur was apparently conveying her concerns, Mr Owen and his wife became free and joined the discussion.31
[44] Mr Mullan recalls that Ms Kaur spoke about going to the police and she was informed in the meeting that if Ms Kaur felt she had to then she should go to the police. 32 Mr Mullan said that the next day ‘we’, presumedly Mr Mullan and the Respondent owners, heard that Ms Kaur had gone to ‘Fair Work’ and had repeated in her ‘Fair Work statement’ that which she had informed Mr Mullan and the owners of the Respondent of. Mr Mullan noted that Ms Kaur had said that there had been sexual harassment and bullying and it ‘[L]ooked like she was telling us the truth. She wanted him fired’.33
[45] In short, Ms Kaur argued that the Head Chef, Mr Singh, had sexually harassed her, pushed her to be his girlfriend and had clearly asked for sex.
[46] In her view, Mr Singh had taken advantage of his position for his own personal interest and had created a hostile work environment.
[47] Furthermore, and to the extent that Mr Tejpal was involved, Mr Tejpal had pushed her for work and bullied her.
[48] Ms Kaur submitted that Mr Singh must be ‘fired from his work so that nobody faces this kind of bullying and sexual harassment in future’.
4 Respondent’ submissions
[49] The Respondent cites in its oral submissions evidence of a poor working relationship between Ms Kaur and others in the kitchen, noting that she would often refuse to carry out lawful and reasonable duties, to the expectation of her Chefs.
[50] In its Form F73, the Respondent detailed that during her time working in the business, Ms Kaur had been asked and told to do things in the workplace including to adhere to how the business runs in the kitchen. The Respondent submitted that at times Ms Kaur had refused to follow the instructions of, and the methods put in place by the Head Chef and senior kitchen staff. The Respondent further submitted that it had been alleged that Ms Kaur was rude in her responses and used inappropriate language and continued to do things her own way.
[51] In short, it was the Respondent’s view that Ms Kaur argued with her Sous Chef and colleagues and created an unpleasant atmosphere in the workplace. Furthermore, as a non-qualified kitchen hand, the Respondent observed Ms Kaur was unfamiliar with the busy pace of a commercial kitchen, which can be loud, abrasive, tense and pressurised, with staff pushed to perform at a fast pace so that meals are delivered in a timely manner.
[52] The Respondent pressed that it appeared that Ms Kaur lacked the experience to work in that environment, which was understandable because she was an unqualified kitchen hand. However, rather than manage the issue of Ms Kaur’s performance – the Respondent submitted that it had failed to address that performance, with the exception of the Sous Chef who had provided her with some training and guidance.
[53] In respect of the circumstances of the purported interactions between Mr Singh and Ms Kaur, the Respondent observed that Mr Singh had been unaware that he had been recorded when it came to the four audio recordings submitted. Instead, Ms Kaur had decided to record her conversations with Mr Singh absent his knowledge and therefore this was a matter of concern. On this basis, the Respondent asked that in making findings less weight should be attributed to the audio recording exhibits.
[54] The Respondent further drew attention to Mr Singh’s assertion in cross examination that the extracts were passages of parts of conversation and not the entire conversation.
[55] The Respondent submitted that despite Ms Kaur’s belief that she was bullied or sexually harassed by Mr Singh or Mr Tejpal there was no evidence to suggest this was the case. The Respondent observed that Ms Kaur’s evidence relied heavily on the audio recordings.
[56] The Respondent conceded that as the Head Chef, Mr Singh had management of others in the kitchen and should have exercised better judgment than to transport Ms Kaur to and from the workplace. The Respondent observed that this was specifically so, at the point where Mr Singh had felt Ms Kaur was playing both sides. The Respondent expanded on the point, noting that in his evidence Mr Singh had expressed that he felt Ms Kaur was saying one thing to her boyfriend and another to Mr Singh. The Respondent stated that Mr Singh should have ceased all non-work related contact at that point – in the form of telephone calls and transportation.
[57] The Respondent argued that it was evident that the interactions between Mr Singh and Ms Kaur occurred outside of the workplace and constituted non-work-related contact.
[58] The Respondent also highlighted that Ms Kaur, by her own admission, had ‘quit’ and had not returned to the workplace since lodging her complaint on 25 November 2021. It followed that Ms Kaur was not at a continuing risk of harm.
[59] Section 789FC of the Act provides that a worker who reasonably believes that she or he has been bullied or sexually harassed at work may apply to the Commission for an order under s 789FF of the Act.
[60] Section 789FD of the Act details when a worker is bullied or sexually harassed at work. It provides:
789FD When is a worker bullied at work or sexually harassed at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(2A) A worker is sexually harassed at work if, while the worker is at work in a constitutionally-covered business, one or more individuals sexually harasses the worker.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) Commonwealth authority; or
(iv) body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place; then the business or undertaking is a constitutionally-covered business.
[61] The Commission is empowered to make orders to stop bullying and sexual harassment under s 789FF of the Act, which includes three preconditions for the making of an order to stop bullying. They are:
a) the worker made an application pursuant to s 789FC (s 789FF(1)(a));
b) the Commission is satisfied that the worker has been bullied or sexually harassed at work (s 789FF(1)(b)(i) and (ii)); and
c) there is a risk that the worker will continue to be bullied or sexually harassed at work (s.789FF(1)(b)(ii) and (ii)).
[62] Section 789FF is set out in full below. It reads:
789FF FWC may make orders to stop bullying or sexual harassment
(1) If:
(a) a worker has made an application under section 789FC; and
(b) either or both of the following apply:
(i) the FWC is satisfied that the worker has been bullied at work by an individual or a group of individuals, and the FWC is satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group;
(ii) the FWC is satisfied that the worker has been sexually harassed at work by one or more individuals, and the FWC is satisfied that there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to:
(c) if subparagraph (b)(i) applies—prevent the worker from being bullied at work by the individual or group; or
(d) if subparagraph (b)(ii) applies—prevent the worker from being sexually harassed at work by the individual or individuals; or
(e) (e) if subparagraphs (b)(i) and (ii) apply:
(i) prevent the worker from being bullied at work by the individual or group; and
(ii) prevent the worker from being sexually harassed at work by the individual or individuals.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and
(d) any matters that the FWC considers relevant.
[63] First, I am satisfied that Ms Kaur is a worker and that the conduct alleged to have taken place against Ms Kaur is in a workplace that is conducted by a ‘constitutionally-covered business’ under ss 789FD(3) of the Act.
[64] Before turning attention to Mr Tejpal’s purported conduct, I intend to address the purported conduct of Mr Singh.
6.1 Sexual harassment
[65] The Commission under s 590 of the Act can inform itself in any manner it considers appropriate and, while not bound by the rules of evidence, will generally have regard to the Evidence Act 1995 (Cth) of which s 138 allows improperly or illegally obtained evidence to be admitted where the desirability of admitting the evidence outweighs the undesirability.
[66] Through the hearing, the Respondent noted that the recordings of Mr Singh were made absent his consent. When tendered into evidence however, there was no objection to the reception of that evidence by the representative of the Respondent. This is notwithstanding that the telephone recordings have been made without the consent of Mr Singh and prima facie this may be in contravention of the Surveillance Devices Act 1998 (WA).
[67] However, I allowed the admission of the audio recordings and their transcription deeming it desirable to hear first-hand whether Mr Singh had made the remarks asserted by Ms Kaur.
6.1.1 Reasonable belief – s 789FC(1)
[68] For this type of application, an applicant must ‘reasonably believe’ that she or he has been sexually harassed at ‘work’. For the belief to be considered ‘reasonable’, it must be one that is actually and genuinely held, as well as it being reasonable in an objective sense. 34 When speaking of an ‘objective sense’ it has been said that this in turn means ‘there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd’.35
[69] In the decision of Mac v Bank of Queensland Limited & Others (BOQ), a decision in respect of workplace bullying but which nevertheless is apposite to the case in hand, the Vice President said that in most cases it can be anticipated that whether the applicant reasonably believes she or he has been bullied at work, such as to permit the making of an application under s 789FC(1), the Commission will be able to find without difficulty that the first prerequisite in s 789FF(1) is satisfied. 36
[70] In BOQ, the Vice President referred to the belief of being bullied at work being a ‘reasonable belief’ in the sense it has something tangible to support it and is not entirely irrational, absurd or ridiculous. 37 The reference to ‘tangible’ would appear to import that a reasonable belief is one where there is perceptible evidence to support the belief. That is, the belief is not illusory. Further, if the belief is to be reasonable then its premise ought to be one of logic.
[71] In this case, it did not appear to be in issue that Ms Kaur held a reasonable belief. The sexual harassment complained of in respect of Mr Singh was exhaustively detailed by Ms Kaur at hearing, and of course there was reference to the audio recordings to support that which had been alleged. I am persuaded that the requisite belief was held.
6.1.2 At work
[72] Section 789FF requires that the sexual harassment occur ‘at work’. The Respondent pointed to the interactions between Mr Singh and Ms Kaur having occurred, in its view, outside of the workplace and therefore the interaction constituted non-work-related contact.
[73] The revised explanatory memorandum for the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the EM) at paragraph [40] – [41] sets out:
A number of FWC decisions have considered the meaning of ‘at work’ in the existing anti-bullying jurisdiction and these principles will continue to be relevant in relation to sexual harassment matters. The most authoritative is the decision of a five member Full Bench of the FWC in Bowker; Coombe; and Zwarts v DP World Melbourne Ltd; Maritime Union of Australia, Victorian Branch and Others [2014] FWCFB 9227 17 December 2014 in which it was noted that the concept of being ‘at work’ includes both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer. A worker does not need to be performing actual work for the bullying or harassment to have a clear and temporal connection to work.
Further, the FWC has reasoned that behaviour that occurs at work events, coffee breaks, and other activities that are closely connected to work are all within the jurisdiction (Rizwan Nasir Sheikh v Civil Aviation Safety Authority; Peter Marsh; Owen Richards [2016] FWC 7039). Whether the requisite connection is present will in all cases depend on the particular facts and circumstances.
[74] The EM accurately identified that the question of when a worker is ‘at work’ in a constitutionally-covered business was considered at length in the Full Bench decision of Bowker v DP World Melbourne Limited & Ors (Bowker). 38 The conclusions reached by the Full Bench were as follows:
[48] We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (i.e. the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (i.e. the applicant). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour.
[49] While a worker performing work will be ‘at work’ that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be ‘at work’ while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace.
[50] In our view an approach which equates the meaning of ‘at work’ to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be ‘at work’.
[51] It seems to us that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).
[75] In Purcell v Farah and Mercy Education Ltd T/A St Aloysius College (Purcell), 39 the Deputy President observed that the Full Bench rejected a submission that conduct occurs ‘at work’ merely because it has a substantial connection to work. The Deputy President acknowledged the difficulty of delineating the parameters of what is meant by the words ‘at work’ in s 789FD(1)(a), saying that the approach to this should be developed over time on a case-by-case basis. Purcell included the following passage from Bowker, where it was said by the Full Bench at paragraph [53]:
In most instances the practical application of the definition of ‘bullied at work’ in s.789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker ‘at work’ when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract. 40
[76] It has been concluded in respect of s 789FD(1) that individuals engaged in repeated unreasonable behaviour need not be ‘at work’ (presumedly in the geographical sense of the term) at the time they engage in the offending behaviour. 41 Therefore, as was the case in Purcell, this case raises a complex issue of whether Mr Kaur was ‘at work’ at the material times. Ms Kaur relies upon certain behaviours of Mr Singh which purportedly occurred while she was at her house, in car driven by Mr Singh, and in the car park of the Respondent.
[77] The principles governing statutory interpretation are well known and therefore I will not repeat them at length. The contemporary approach to statutory construction emphasises the importance of the purposive approach, noting the requirements of s 15AA of the Acts Interpretation Act 1901 (Cth). Suffice to say, words of a statute are construed according to their ordinary meaning having regard to their context and legislative purpose. Context includes the existing state of the law, the mischief the legislative provisions were intended to remedy and the legislative history. 42
[78] As observed, the Full Bench in Bowker expressed that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer or, in the case of a contractor, their principal (such as being on a meal break or accessing social media while performing work).
[79] Turning to whether the alleged conduct of Mr Singh occurred whilst Ms Kaur was ‘at work’, we are taken to four locations. None of those locations appear to have been in the kitchen and, at those times, Ms Kaur does not appear to have been performing work. Whether that in turn means that the interactions between Ms Kaur and Mr Singh occurred ‘at work’ requires consideration of the evidence and the application of that which has been articulated in Bowker. Further consideration is had to the propositions traversed in Purcell and Rizwan Nasir Sheikh v Civil Aviation Safety Authority; Peter Marsh; Owen Richards. 43
[80] It is not in dispute that the ‘Asking to be his girlfriend’ transcript is a record of conversation that was held in the car park of the Respondent. Mr Singh speaks of two conversations having been held with Ms Kaur on the day when the recording of ‘Asking to be his girlfriend’ was taken. It was the latter conversation that was captured by audio recording and by Mr Singh’s own words this conversation unfolded in the lunch break. 44 It appears from the evidence that the break was an authorised punctuation in the workday. Therefore, the conversation between the Head Chef and Ms Kaur which took place on a lunch break in the Respondent’s car park, falls within the scope of the term being ‘at work’, as that term has been construed and understood in Bowker. I consider that nothing much turns on whether the break was taken inside the Respondent business or its carpark, in this circumstance.
[81] The second conversation, however, is a little difficult to so confine as being ‘at work’. Titled eponymously ‘Gill’, it is a dialogue that occurred within the boundaries of Mr Singh’s car. Relevantly, I think, Mr Singh had collected Ms Kaur to transport her to work. The circumstances surrounding the arrangement of transportation will be touched upon at later point, but suffice to say, Mr Singh was the Head Chef and he was for all intents and purposes Ms Kaur’s manager. I believe Ms Kaur’s evidence that he imposed the transportation arrangement upon her, and he had ultimately decided to transport her to work.
[82] The Respondent business had appeared to have provided Mr Singh with carte blanche authority over the employees within the kitchen. This included issuing direction and assigning tasks whilst preparation and service occurred, performance managing employees, arranging shift coverage and rosters, and ultimately deciding who worked in the kitchen.
[83] Whilst not in the kitchen and not on a break, the alleged behaviours cannot remain impervious to this jurisdiction simply because at the relevant time Mr Kaur was not in a kitchen performing work or taking an authorised break at the workplace. Ms Kaur was engaged in the activity of driving to work which had been initiated by her Manager, Mr Singh. Whether Ms Kaur requested the transportation distracts from the salient point that Mr Singh initiated the activity. Whether he proffered the lift, imposed the lift upon Ms Kaur, or alternatively acceded to Ms Kaur’s request for a lift, it was his decision to drive Ms Kaur to work. He took that decision as her manager, and as an authority figure within the business in which they both worked. It is therefore not a long bow to draw that the activity engaged in, that is the drive to work, was permitted by Mr Singh and therefore the Respondent business, and as such occurred at a time where for the purpose of this jurisdiction the two were ‘at work’.
[84] The owners of the Respondent business did not provide evidence at hearing. However, the General Manager, Mr Mullan, gave evidence that the Respondent business expected the Head Chef to relay any issues, and if he could not solve an issue himself, he was to ask. With the exception of checking pays and timesheets, Mr Mullan’s day to day involvement in the kitchen appeared limited. It was evident that Mr Singh ran the ‘show’ or as the Respondent conceded, he had management of others in the kitchen.
[85] Furthermore, and to the extent that it is relevant, I am unconvinced by an argument that Mr Singh was simply an altruistic friend helping another colleague out by providing them with transport. To characterise the activity as such strips the activity of its context. A context of power imbalance where the activity was initiated by Ms Kaur’s manager and that activity was transportation to the workplace.
[86] Part 6-4B consists of protective provisions enacted to provide an individual right of recourse for persons who are sexually harassed or bullied at work to help resolve the matter quickly and inexpensively. 45 The provisions of this Part would be effectively neutered in circumstances where being transported to work could not be considered ‘at work’ in certain contexts.
[87] Part 6-4B of the Act has broad coverage regarding the type of applicants who can apply for an order under s 789FF. The use of the word ‘worker’, purportedly extends the Part’s application to employees, contractors, subcontractors, outworkers, trainees, students gaining work experience and volunteers. It is therefore unsurprising that the Part does not refer simply to the concepts of an ‘employer’, ‘employee’ and ‘employment’ or ‘employed’. Having adopted the meaning for the term ‘worker’ from the Work Health and Safety Act 2011 (Cth), the Explanatory Memorandum explains that the definition is broad citing examples of coverage:
The term extends to persons who carry our work in any capacity for a ‘person conducting a business or undertaking’ (PCBU), including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer. The term also extends to include other persons who are deemed to be workers by section 7 of the WHS Act for the purpose of that Act, including Members of the Australian Defence Force, Members of the Australian Federal Policy and Commonwealth Statutory Officers. 46
[88] The term ‘at work’ when viewed in this context can be seen to effectively provide a ‘neutral’ term that avoids confining the operation of the Part to the binary relationship of the employer and employee – in ‘employment’ or whilst ‘employed’. Section 789FD similarly adopts the language of ‘worker’, ‘at work’ and identifies that it is an ‘individual’ who is the antagonist in the scenario. The language adopted in Part 6-4B emphasises that the jurisdiction extends beyond the employment relationship, and in this respect the meaning attributed to the term ‘at work’ should, as was outlined in Bowker be considered in context.
[89] I turn then to perhaps the conundrum of whether one can have just arisen from bed at home and at that same time be sexually harassed ‘at work’. You will recall that the conversation titled ‘Calling in the morning to go out’ occurred whilst Ms Kaur was at home having just awoken. It was a conversation where Mr Singh appeared to press Ms Kaur to go out for breakfast.
[90] I come back to a passage in Bowker that resonates with the submissions of the Respondent in this case.
[91] At paragraph [53] in Bowker, situations were said to have been canvassed during oral argument in that case about the context where a worker, for example, receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. As to whether this constituted being ‘at work’ when the worker engages in the conversation, the Full Bench concluded that in most cases the answer was ‘yes’, qualifying that much would depend on context, including custom and practice, and the nature of the worker’s contract.
[92] Mr Singh spoke of a work environment where the kitchen team normally go out clubbing together. That they would go out to dinner, lunch and attend parties together. Outside of work, he considered them to all be friends. Mr Singh said that if anyone was having work related issues, they were advised to talk at work and that he tried to keep these two things different. Yet in the transcript titled ‘Work Performance’, Mr Singh called Ms Kaur whilst Ms Kaur was at home for the purpose of motivating her with positive feedback about her work performance. The evidence given also supports a finding that Mr Singh contacted workers outside of their work hours to secure them for shifts, when arranging the kitchen roster.
[93] As to the dialogue titled ‘Work Performance’, in light of the above, I considered it to have occurred ‘at work’. This is the case, notwithstanding, Ms Kaur having been at home at the time it occurred. The subject matter of the conversation was in part work related and it appeared to be Mr Singh’s practice to call the kitchen workers about work ‘after’ hours, albeit not before 9am in the morning.
[94] Returning to the vexed issue of the ‘Calling in the morning to go out’ conversation. The conversation heard on this occasion did not broach work matters until Ms Kaur raised them in the latter part of the dialogue. Whether Ms Kaur and Mr Singh’s conversation extended beyond that recording is difficult to conclude from the evidence led. However, Ms Kaur states that Mr Singh called her, and it appears from his evidence that he had a placed a call with purported intent to appease Ms Kaur about another missed outing.
[95] As observed, it is apparent that the custom and practice of the Head Chef was to contact the Respondent’s kitchen workers, outside of their rostered shifts. In fact, it appears that in respect to Ms Kaur, Mr Singh considered that such phone calls were not limited in their content to the securing of a casual staff member for a shift, but extended to feedback on her performance. He considered it his role to call her outside of work hours with a view to address her feeling ‘down’.
[96] That the conversation was absent work-related content at its inception and was only introduced by Ms Kaur at a latter point, does not in my view detract from it being held ‘at work’. Mr Singh’s authority or license to contact Ms Kaur outside of working hours arose because of the position he held. Further, were Ms Kaur desirous of securing shifts she was obliged to answer Mr Singh’s call – otherwise the working opportunity as a casual employee would be lost. When considered in that context, the dialogue between Mr Singh and Ms Kaur titled, ‘Calling in the morning to go out’ falls within the scope of having taken place ‘at work’.
6.1.3 Sexually harassed
[97] The Act adopts the meaning attributed to the term ‘sexually harass’ or ‘sexual harassment’, as set out in s 28A of the Sex Discrimination Act 1984 (Cth) (SD Act).
[98] That meaning is:
28A Meaning of sexual harassment
(1) For the purposes of this Act, 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 the possibility that the person harassed would be offended, humiliated or intimidated.
(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c) any disability of the person harassed;
(d) any other relevant circumstance.
(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.
Note: Other parts of speech and grammatical forms of “sexually harass” (for example, “sexual harassment”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
[99] A worker is understood to have been sexually harassed at work if, while the worker is at work in a constitutionally-covered business, one or more individuals sexually harasses the worker: see subsection 789FD(2A) of the Act.
[100] In the decision of Hughes trading as Beesley and Hughes Lawyers v Hill (Hughes), 47 the Full Court of the Federal Court, adopted the reasons for judgment prepared by Perram J. In those reasons, his Honour ascribed meaning to s 28A of the SD Act. The relevant passages are extracted:
20 It follows that if the Respondent was successful in demonstrating that the Appellant had sexually harassed her under s 28B(1) of the SD Act then the power of the Federal Circuit Court to award her damages was enlivened. Section 28A provides a definition of what constitutes sexual harassment for the purposes of s 28B(1) (and other provisions in Div 3). Section 28A is as follows:
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 the possibility that the person harassed would be offended, humiliated or intimidated.
(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c) any disability of the person harassed;
(d) any other relevant circumstance.
(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.
21 There are essentially three elements to this provision.
22 First, the Court is directed by subs (1) to ask itself whether there has been any of three identified forms of conduct: a sexual advance, a request for sexual favours or other conduct of a sexual nature. Each of these concepts involves the application of a defined legal standard to the facts as found. The Court must determine, on those facts, whether there was a sexual advance, a request for sexual favours or other conduct of a sexual nature. It is a question for the Court and it is a question of fact. In determining whether there has been conduct of a sexual nature the Court applies, of course, the definition of that term in s 28A(2).
23 Secondly, if an identified form of conduct is established subs (1) also requires that it must be ‘unwelcome’ to the person allegedly harassed. This is a question of fact which is subjective and which turns only on the allegedly harassed person’s attitude to the conduct at the time. Even if the Court has concluded under the first limb that one person has engaged in conduct of a sexual nature towards another person, this will not constitute sexual harassment under the provision if it was not actually unwelcome in this sense. Ordinarily this will be proved by the person allegedly harassed giving evidence that the conduct was unwelcome but that mode of proof is not dictated by the statute and proof of this fact, like proof of any other fact, may be done by a variety of means. In some cases, I suspect this is one, the unwelcome quality of the conduct will be painfully obvious.
24 Thirdly, once it be established that there was conduct of a sexual nature towards another and that the conduct was unwelcome, the provision imposes an objective delimitation on the provision’s ambit. The ‘circumstances’ must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct. The ‘circumstances’ are defined broadly in s 28A(1A) and include, importantly for this case, the relationship between the harasser and the harassed.
25 The objective standard imposed by the provision does not relate to the first two issues. The objective question is not whether a reasonable person would regard the conduct as being sexual in nature (as defined) for that is a threshold question the Court determines for itself. Nor is the objective standard applied to the question of whether the person allegedly harassed ought to have regarded the conduct as unwelcome, for that is an issue to be determined by reference to the actual state of mind of the person. Instead, the objective standard is applied to a new issue – that of whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
26 In answering this question, the reasonable person is assumed by the provision to have some knowledge of the personal qualities of the person harassed. The extent of the knowledge imputed to the reasonable person is a function of the ‘circumstances’ which the provision requires be taken into account. Mention has already been made of the nature of the relationship between the harasser and the harassed. It is convenient also to note that the circumstances will include any disability the harassed person is suffering from (subs (1A)(c)) as well as matters such as sex, age, religious belief or sexual orientation (subs (1A)(a)). But the list in subs (1A) is merely inclusive so that other unspecified but relevant circumstances may also be taken into account. The canvas is broad.
27 Equipped then with that information, the question to be asked is whether the reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Each of these is different in kind and it should not necessarily be thought that they are arranged in order of seriousness. It may, in some cases, be worse to be deeply offended than it is to be slightly humiliated.
[101] In my consideration of whether Mr Singh sexually harassed Ms Kaur, the principles in Hughes are adopted. I attempt not to paraphrase or distil them, but to simply apply them to the facts in this case.
[102] Before embarking on my consideration of the conversations held between Ms Kaur and Mr Singh, the complexity of the factual matrix is to be appreciated. There are some factual disputes between the parties, and I have determined those that are relevant to the disposition of this matter having regard to the oral, documentary, and audio recorded evidence.
[103] There is an inherent difficulty when the languages spoken are either Punjabi or Hindi. At times, through no fault of the interpreting services, there was difficulty in translating a English word into the equivalent word in the Punjabi or Hindi languages. The Commission is inevitably indebted to the sound work of the interpreters who persevered translating word for word the evidence and submissions, for the most part, of the proceedings. It was a long process, and their patience is to be commended.
[104] Dealing briefing with the Respondent’s submissions about the audio recordings, including the way they were garnered and not representative of all which was said, first, the content of the recordings in and of themselves are sufficient for this Commission to make a finding that more likely than not, Mr Singh had made sexual advances towards Ms Kaur. However, as it stands the oral evidence of Ms Kaur supported such findings as did her Form F72.
[105] Second, where there is a disparity between Mr Singh’s evidence and that of Ms Kaur, I have accepted Ms Kaur’s evidence for the following reasons.
[106] Ms Kaur has answered questions clearly and convincingly, without an eye to forensic advantage. At times, Ms Kaur’s approach to her case reflected a level of immaturity that was unable to be masked.
[107] In this respect, I note that whilst pursuing a case of sexual harassment and bullying at work, her cross examination became almost fixed on the point that the Respondent had claimed that she was not a chef, as she had purported to be, but rather a kitchen hand or cook. Ms Kaur was clearly unimpressed by such suggestion notwithstanding uncontested evidence that she lacked the qualifications that usually qualify one to assume such position.
[108] Understandably, Ms Kaur exhibited a level of palpable frustration when suggestions were made that her performance was on any level below that expected of her. In this respect, Ms Kaur sought to impugn the evidence led by the Respondent, submitting those that had reflected on her poor attitude and /or performance at work, had barely worked with her. She appeared correct on this point. Further, it is observed that the Sous Chef had provided some training to Ms Kaur, had very little to say in respect of Ms Kaur underperforming in the kitchen.
[109] That Ms Kaur was frustrated was undeniable, as was her level of contempt for Mr Singh. It also appeared to me that she was emotionally labile. None of which is surprising in the circumstances. During the hearing, Ms Kaur was gently reminded about the appropriateness of her approach when questioning those witnesses who were providing evidence.
[110] Yet, Ms Kaur’s presentation does not weaken a summation that she spoke truthfully. Her evidence did not appear to be contrived.
[111] In contrast, Mr Singh’s narrative about the conversations with Ms Kaur and how they came to be, lacked the tenacity of truth. Mr Singh reasoned that he spoke to Ms Kaur as he did, because Ms Kaur was ‘playing both sides’. By this, Mr Singh clarified that Ms Kaur’s boyfriend did not understand her and she was telling one thing to her boyfriend and another to him. When asked as to why Mr Singh did not remove himself from the situation when he realised that Ms Kaur was ‘playing both sides’, Mr Singh’s evidence was such that taking Ms Kaur home was part of his personal life, in which he likes to try and help, and that he was just helping a colleague as a general friend. He further noted that when they (presumedly colleagues) come into his personal space, he then steps back. In this case, clearly, he did not.
[112] When Mr Singh was asked whether he knew Ms Kaur was recording him, he acknowledged he did not and added that he was playing the part of a very neutral friend. Mr Singh said that his conversations with Ms Kaur were ‘normal friend’s talk’.
[113] I do not believe Mr Singh’s evidence. I find it implausible that the part he played was of a neutral friend, and that the conversations constituted ‘normal friend’s talk’. Mr Singh’s explanations hover so very closely on the cusp of delusion or perhaps contravention of s 678 of the Act. To suggest he was asking Ms Kaur to be in effect a friend that was a girl or that he was not asking her for a relationship, cannot be reconciled with the conversations recorded that he concedes he was part of. It was open to Mr Singh to make appropriate concessions about the recordings, he made none.
[114] The gist of Mr Singh’s evidence was that his intentions towards Ms Kaur were honourable. Suggesting that his conduct fell within the scope of friendship and that of a concerned friend are difficult to reconcile with the evidence adduced. Of course, the proposition that Mr Singh’s intentions were honourable goes to the issue of whether the harassment was sexual or otherwise; it does not go to whether the behaviour was objectively offensive, humiliating or intimidating. 48
[115] The Respondent’s submissions unabashedly sought to challenge Ms Kaur’s evidence about the sexual harassment and workplace bullying on the basis that she was difficult to work with, was underperforming, and that her allegations of sexual harassment and workplace bullying only arose after the calamari incident. The Respondent quite rightly conceded that it had not sought to performance manage Ms Kaur.
[116] The Sous Chef gave evidence that she had observed Ms Kaur to have fought with two people. The Sous Chef clarified that what she meant by ‘fighting’, was Ms Kaur arguing back when she had been given something to do and had been pushed a little. However, overall, the Sous Chef took no issue with Ms Kaur’s performance. Another witness, who at times worked once or twice a week on the same day as Ms Kaur, but not in her section, recalled having asked Ms Kaur on one occasion to assist with the prep list, but that Ms Kaur was against him.
[117] The Respondent’s focus on Ms Kaur’s performance in the kitchen was understandable given her allegations of workplace bullying against Mr Tejpal. The Respondent proposed that the kitchen was a fast-paced environment and one in which Ms Kaur was not accustomed to working in. Therefore, the concept of being directed or ‘pushed’ was to be viewed in that context.
[118] If the proposition of the Respondent was that Ms Kaur claimed sexual harassment in response to the incident on 25 November 2021 and Ms Kaur’s claim was therefore baseless, this proposition cannot be sustained on the evidence, as will be seen.
[119] Further, the Respondent’s focus on Ms Kaur’s performance in circumstances where it merely acknowledged Mr Singh had exercised poor judgment in not withdrawing sooner from interacting with Ms Kaur ‘outside of work hours’ when evident to him, she was ‘playing both sides’, fails to appreciate that (a) by providing Mr Singh with unchecked authority it had empowered him in his rapacious pursuit of Ms Kaur, and (b) the audio recordings of Mr Singh coupled with Ms Kaur’s written and oral evidence, were damning.
[120] Turning to whether the sexual advances were unwelcomed, this is a question of fact which is subjective and which turns only on Ms Kaur’s attitude to the conduct at the time.
6.1.4 Audio recording - Asking to be his girlfriend
[121] In short, the conversation between Mr Singh and Ms Kaur on this occasion is one where Mr Singh repeatedly asks Ms Kaur if she will be his girlfriend. While Mr Singh appeared to have suggested that the term ‘girlfriend’ was one where a girl was simply a friend, the conversation does not lend itself to such finding. Furthermore, I am unpersuaded by Mr Singh’s explanation that all he was trying to do was to ascertain from Ms Kaur whether she wanted to be a friend or a girlfriend.
[122] Ms Kaur clearly comprehended that Mr Singh’s proposal was one where a relationship with him was pressed that included sex. When this was broached with Mr Singh, he did not deny it but simply responded with, ‘Your call’. Mr Singh’s speaks of the relationship proffered as one in which Ms Kaur’s problems would be solved and she would be treated in the following terms, ‘No, I won't torture you. But if you become my girlfriend then, yes, I can say that, okay, you are special. So, I can do ...little bit up and down’. I find that Mr Singh’s conduct was a sexual advance in respect of the persistent questioning about whether Ms Kaur would be his girlfriend, his indication of the advantages that would arise from such intimacy, and the discussion about sex.
[123] Furthermore, having listened to the audio recording, and noted the tone used when both spoke and the stillness when Ms Kaur paused, I do not consider that such punctuations were representative of Ms Kaur seriously considering Mr Singh’s advance with genuine curiosity. The hesitation in my view illuminated her resounding awkwardness and concern in response to the advance. Ms Kaur states that she does not wish to have sex early in the piece and declines the proposal of being Mr Singh’s girlfriend at the latter part of the recording. Ms Kaur’s evidence at hearing in relation to this conversation confirmed Mr Singh’s conduct was unwelcomed. The direct evidence presented aligns with this sentiment. It is palpably evident throughout the conversation that Ms Kaur was not receptive to suggestions of sex or being Mr Singh’s girlfriend, and his offer of ‘special’ treatment did nothing to persuade her otherwise.
[124] Mr Singh was the Head Chef. Ms Kaur was his subordinate. According to the Respondent, she was at best a cook or kitchen hand. The power disparity on this level alone was marked. However, the evidence was such that Ms Kaur was a casual employee. Her work allocation was dependent on Mr Singh’s exercise of discretion. Ms Kaur spoke English as a second language and it was Mr Singh’s evidence that the income she derived, was in part channelled to India to assist family members. Her vulnerability was evident as was her dependency on securing work.
[125] Mr Singh persistently badgered Ms Kaur in this conversation about whether she would be his girlfriend and the discussion extended to whether that concept would involve sex. The ‘circumstances’ are such that a reasonable person would have anticipated the possibility that Ms Kaur would be offended and intimidated by the conduct.
[126] It follows that Mr Singh sexually harassed Ms Kaur during the course of this conversation.
6.1.5 Audio recording - Gill
[127] It was uncontroversial that the transcript of the audio recording ‘Gill’ was an accurate account of the conversation between Mr Singh and Ms Kaur at that time. At hearing, I asked Mr Singh to explain what had led to him asking Ms Kaur whether she wanted to have sex with him. He said there had been another discussion about two minutes before the audio recording, in which Ms Kaur had initiated a talk about marital affairs and what happens in a marital affair.
[128] I have considered Mr Singh’s response and was unimpressed with its believability. It seemed he was tenuously grasping at ideas how he could frame the imposition of the questions asked. How he came to discuss with Ms Kaur extra-marital affairs and then lead into the question of whether Ms Kaur wanted to have sex with him belies belief, as does his question ‘[W]hy??’.
[129] I have found that Mr Singh’s conduct constituted a sexual advance given he asked Ms Kaur whether she wanted to have sex with him.
[130] As to whether it was unwelcomed, I have found that it was. Ms Kaur said ‘no’. It was an unequivocal rejection.
[131] Ms Kaur was placed in a position of having to respond to a question about sex and to thereafter justify to her manager, who had asked of her the question, why she did not want to have sex him. On any objective level, Mr Singh’s conduct was offensive and intimidating. A reasonable person would have anticipated the possibility that Ms Kaur would be offended and intimidated by Mr Singh’s conduct in these circumstances and would likely have been affronted by such misconduct.
6.1.6 Audio recording – Calling in the morning to go out
[132] Ms Kaur gave evidence that she received a phone call from Mr Singh toward late October 2021 to early November 2021, at approximately 9-9:30am in the morning. She was at home at the time. The transcript shows that Mr Singh persistently asked Ms Kaur to go on an outing despite her refusal on multiple occasions. There is no reason to doubt the accuracy of the transcript. It was acknowledged by Ms Kaur and Mr Singh that the audio recording was of their conversation.
[133] Mr Singh explained that the conversation came about after circumstances where he had declined taking Ms Kaur out the previous day. Attempting to make amends, he called her and offered an outing. Ms Kaur denies this to be the case.
[134] Mr Singh is not asking Ms Kaur out as part of a work group. He has singled her out and has done so notwithstanding that Ms Kaur reports to him and is reliant on him allocating her work. The context is one where Ms Kaur reports having been persistently asked to be his girlfriend and having been propositioned with an offer of favours or preferable/special treatment should she so agree. At hearing, Ms Kaur denied that she had asked Mr Singh to take her out and he had declined to do so.
[135] When considered in that context the conduct of Mr Singh asking Ms Kaur to go for an outing constitutes a sexual advance. That it was unwelcome is evident from Ms Kaur’s persistent and consistent reply to him through the course of the conversation.
[136] In light of Mr Singh’s insistent badgering about going out, coupled with the suggestion of how Ms Kaur should formulate an excuse not to go to college, I consider that a reasonable person would have anticipated the possibility that Ms Kaur would be offended and intimidated by Mr Singh’s conduct in these circumstances.
6.1.7 Audio recording - Work performance
[137] In short, Ms Kaur said she received a phone call from Mr Singh on a morning in October 2021, which centred on her work performance. Whilst the call placed indicates Mr Singh’s practice of calling outside of working hours to discuss work – whether rostering or performance issues, the content of the call, as recorded, does not give rise to a finding of it constituting a sexual advance, an unwelcome request for sexual favours, or unwelcome conduct of a sexual nature.
6.2 Workplace bullying
[138] I do not intend to spend much time traversing Ms Kaur’s complaint of workplace bullying levelled at Mr Tejpal. The complaint appeared to have arisen from the incident on 25 November 2021, where Mr Tejpal had provided feedback to Ms Kaur about her preparation of calamari.
[139] I accept Mr Tejpal’s account that he had delegated to Ms Kaur the job of slicing the calamari that had ultimately been allocated by the Head Chef. Further, I also accept that Mr Tejpal had provided feedback to Ms Kaur that she was to move fast, and Ms Kaur had told him that it was how she cut the calamari and then she walked off, prior to the break. I believe Mr Tejpal when he said that he was just giving Ms Kaur a job and was showing her how it was to be done. He noted that he did not talk to her much.
[140] There are no other tangible examples of how Mr Tejpal acted unreasonably towards Ms Kaur and created a risk to her health and safety.
[141] Having found that Ms Kaur had been sexually harassed and in consideration of what I intend to traverse next, I have not traversed whether Ms Kaur was bullied in the workplace by Mr Singh.
[142] However, it is accepted that an explanatory memorandum may be used to assist in ascertaining the meaning of a provision in a statute. 49 The EM at paragraph [21] acknowledges that conduct that amounts to bullying can also be sexual harassment.
[143] As s 789FF(b) makes clear, I must be satisfied not only that Mr Kaur has been sexually harassed at work by an individual or group of individuals but also that there is a risk that she will continue to be sexually harassed at work by that individual or group of individuals. Therein lies the difficulty for Ms Kaur, after her disclosure at hearing that she had ‘quit’ employment at the Respondent and now simply sought a statement of service – which the Respondent agreed to provide.
[144] It seems to me that I have no power to make an order to stop sexual harassment unless I can be satisfied relevantly that there is a risk that, at work, Ms Kaur will continue to be sexually harassed by the individual or group of individuals identified in her application.
[145] In her Form F72 Ms Kaur stated:
I think the head chef must be fired from this work so that this [sic] nobody face this kind of bullying and sexual harassment in future.
[146] It is clear that Ms Kaur is no longer employed by the Respondent. The employment relationship has ended. Therefore, there cannot be a risk that Ms Kaur will continue to be sexually harassed at work by an individual identified in her application because Ms Kaur is no longer employed by the Respondent, and it follows is no longer at work.
[147] In my opinion, I do not have power to make an order to stop sexual harassment and, as a consequence, I am satisfied that Ms Kaur’s application has no reasonable prospect of success. I see no reason in the circumstances why I should not exercise my discretion to dismiss Ms Kaur’s application given my finding and I do so.
[148] An order 50 dismissing Mr Kaur’s application has been made separately.
DEPUTY PRESIDENT
Appearances:
Ms R. Kaur for herself;
Mr A. Robinson of Azure HR for the Respondent.
Hearing details:
Perth (Microsoft Teams Video)
2 & 3 March 2022
Printed by authority of the Commonwealth Government Printer
<PR739030>
1 Witness Statement of Ryan Mullan [3] (Mullan Statement).
2 Ibid [4].
3 Ibid.
4 Ibid.
5 Witness Statement of Karamjit Singh [18] (Singh Statement).
6 Ibid.
7 Ibid.
8 Ibid.
9 Ibid.
10 Ibid.
11 Ibid.
12 Ibid.
13 Ibid.
14 Ibid.
15 Ibid [19].
16 Ibid.
17 Ibid [17].
18 Ibid [6].
19 Ibid.
20 Ibid.
21 Ibid [7].
22 Ibid.
23 Ibid [21].
24 Witness Statement of Tejpal Singh [3] (Tejpal Statement).
25 Ibid [3].
26 Ibid [3].
27 Mullan Statement (n 1) [9].
28 Ibid [10].
29 Ibid.
30 Ibid.
31 Ibid.
32 Ibid.
33 Ibid.
34 Mac v Bank of Queensland Limited & Others [2015] FWC 774, [79] (BOQ).
35 Ibid [79].
36 Ibid [80].
37 Ibid [96].
38 [2014] FWCFB 9227 (Bowker).
39 [2016] FWC 2308 (Purcell).
40 Bowker (n 38) [53];cited in Ibid [84].
41 Bowker [31].
42 See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619, [59]; Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042, [26]-[37]
44 Singh Statement (n 5) [18].
45 Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth) [88].
46 Ibid [103].
47 [2020] FCAFC 126 (Hughes).
48 Ibid [32].
49 Acts Interpretation Act 1901 (Cth) s 15AB.