1. These claims are not co-dependent.
2. The applicant's claim was brought pursuant to section 20(c) of the Discrimination Act which states that it is unlawful for a person who provides services to discriminate against another person in the way in which the provider provides those services. Having regard to the definition of discrimination in section 8 of the Discrimination Act, the applicant claimed that it was unlawful for a service provider to treat another person unfavourably because of a protected attribute in the manner in which the services provided.
3. 'Services' is defined to include "services relating to entertainment, recreation and entertainment."[20] I am satisfied that the provision of personal training services falls within that definition as it is a recreational activity.

1. The claim regarding the respondent's conversation with Ms Trajkovksa is difficult to reconcile with section 20(c) of the Discrimination Act.
2. The applicant asked Ms Trajkovska to speak to the respondent. The purpose of the approach was to ascertain why the respondent was not more socially involved with the applicant outside their professional relationship. As best it can be determined, the applicant needed some additional positive reinforcement and attention due to historical mental health issues, which he considered he was not receiving from the respondent.
3. The respondent gave evidence that he insisted on maintaining a strictly professional relationship with the applicant and resisted and/or limited any contact outside the gym. He did so not only because of the nature of the relationship, but that he felt the applicant often raised issues regarding his mental health and the respondent felt unqualified to deal with it.
4. The evidence from both Ms Trajkovska and the respondent regarding their conversation establishes the following:

(a) She approached the respondent at the applicant's request.

(b) At the applicant's request, she asked the respondent about his involvement in the applicant's life and why he was not following the applicant on Instagram or social media or praising him for his dead-lift weight lift, his prowess in bodybuilding transformation, et cetera.[21]

(c) There had been earlier inappropriate behaviour on the applicant's part involving Ms Trajkovksa and the respondent which raised a question about his sexual orientation such as, the applicant claiming he spoke to people that are gay online, he was always talking about men and bodybuilding, and gay people contacting him.

(d) Ms Trajkovska considered the respondent's comment alluded to the applicant being gay. The respondent says he said words to the effect, "I think he is attracted to men" which was based on various interactions and inappropriate material the applicant had shared with him.

(e) The respondent agreed Ms Trajkovska would convey the conversation to the applicant, which she subsequently did via Facebook Messenger.

1. Following the conversation, the parties exchanged text messages and considered that was the end of the matter.[22]
2. The applicant claims he was shocked and hurt by the respondent's comments.[23] He framed his concern and disappointment around the respondent initiating the conversation,[24] which he later conceded it was not.
3. He also considered that he had "never made any representations to Mr Dencio from which he could infer I was homosexual."[25] However, in the text message he sent to the respondent on 2 March 2019, the applicant admitted:

I can think of a couple of comments I have said to you that now I think has prob made you feel this way and I only said them because I thought you knew I'm not gay.[26]

1. The applicant was also cross-examined by the respondent in relation to various images he had sent to the respondent via text message, which included photos of topless men and a video of a man pulling a tractor by his genitals, as well as comments he made to the respondent about other men, including online messaging with gay men.[27] The applicant agreed he sent these messages and made these comments to the respondent.[28] The respondent said he formed his belief regarding the applicant's attraction to men on this kind of behaviour.
2. On one view, the conversation between the respondent and Ms Trajkovksa was unnecessary. It was none of Ms Trajkovska's business and why did the respondent's involvement with the applicant beyond the gym matter? Conversely, she approached the respondent at the applicant's request, which was borne out of a need on the applicant's part to understand why the respondent was not more socially involved in his life. The respondent's provision of personal training is not dependent on him following the applicant on social media or social contact outside the gym.
3. A complete reading of the Facebook Messenger exchange between the applicant and Ms Trajkovksa on 2 March 2019, discloses that the applicant was more invested in the relationship he had with the respondent and dependent on him for his mental wellbeing.[29] This was not reciprocated with the respondent recommending to the applicant several times he seek professional help from someone appropriately qualified. The applicant agreed this occurred. I am satisfied that the respondent sought to maintain a professional distance and was only concerned with training the applicant at the gym. This is reinforced by the content of the respondent's text messages to the applicant on 2 March 2019.
4. Against that background it is difficult to regard the conversation as discriminatory. Perhaps it was inappropriate, however, the applicant expected a conversation between Ms Trajkovska and the respondent to occur. The applicant took issue with the respondent's remark that he thought the applicant was attracted to men. Despite the applicant regarding the conversation as inappropriate[30], the respondent cannot be criticised for conveying his views given the circumstances in which he was approached. He was placed in a difficult position, particularly where his only concern was training the applicant. Such a discussion need not have occurred, but nonetheless when pressed for an explanation, the respondent expressed an opinion about the applicant. Impropriety does not amount to discrimination.
5. Further, the subsequent text message exchange between the parties suggests the matter was resolved. This is consistent with their evidence. Nothing further happened between them in relation to this issue until the June PT Session. The training and the sessions continued as normal.
6. In order to establish discrimination under section 20(c) the conversation must be more than merely inappropriate and must have some bearing on the manner in which the service to the applicant was delivered. It did not.
7. There are several inconsistencies in the applicant's evidence. I am satisfied that the conversation took place at the applicant's request. The conversation did not occur in the context of the respondent providing a service, but rather in a personal capacity because of the applicant's desire to understand why the respondent was not more socially involved with him outside of the PT sessions. This was not related to the provision of the service by the respondent. The applicant also conceded he had sent material to the respondent and made comments which might have caused the respondent to form the belief he did. His belief that the applicant might have been attracted to men, might have been incorrect, but it was not without a reasonable basis.
8. The applicant was clearly bothered by the respondent's remark as evidenced by what transpired later in the June PT Session, but nothing about the conversation between Ms Trajkovksa and the respondent including his remark that he thought the applicant was attracted to men satisfies section 20(c). The evidence does not establish the respondent treated the applicant unfavourably based on a perceived attribute in the course of providing a service.

1. The applicant's claim under section 20(c) in relation to the June PT Session depends largely on reconciling conflicting version of events. This is not an uncommon dilemma for the Tribunal and not an easy issue to resolve.
2. It is agreed that the applicant initiated the discussion during the June PT Session and that a conversation ensued. The applicant claims the respondent said words to the effect, "I still think you're gay because you message gay men on Facebook." The respondent denies this. The applicant also claims the respondent said "you're gay, you're gay, you're gay", which the respondent denies. On the other hand, the respondent accepts he told the applicant he did not regard his conversation with Ms Trajkovska as inappropriate. He says he told the applicant he did not want to discuss it or any other personal issues further and preferred to continue training. He accepts he invited the applicant to get another coach.
3. These versions of events are largely diametrically opposed. Having regard to the applicant's dissatisfaction with the respondent's remark to Ms Trajkovska and his torment over a lack of social media interaction, I am inclined to prefer the respondent's account of the June PT Session. His deflection regarding personal and mental health issues and his focus on simply being a trainer is reinforced by the text message he sent to the applicant on 2 March 2019.[31] This aligns with his version of events regarding the June PT Session.
4. The applicant submitted that his account of the June PT Session is to be preferred largely because it is consistent with what he told his fiancé, Ms Gall, his treating psychologist, Ms Anna Stevens, and Mr Hunter, his friend. There were inconsistencies in what those people all recall the applicant telling them about the June PT Session.
5. The applicant relied upon an email from Mr Lemmon dated 22 June 2019 in support of his account.[32] In that email Mr Lemmon, referring to a discussion with the respondent, stated "he acknowledged that what he said was out of line and that it wouldn't happen again." The applicant took this to be an admission by the respondent. Mr Lemmon explained the respondent said no such thing and he was merely making the statement to the applicant because he felt the applicant would not be satisfied with any other response. The respondent denied he made such a statement to Mr Lemmon. This was further denied in a subsequent text message to the applicant.[33]
6. It also appears that after the June PT Session the applicant went on a campaign to tell as many people as he could about his account of the session, including Facebook. This is what prompted the respondent to send a text message to the applicant on 28 June 2019 denying the applicant's claim.[34] In this message the respondent wrote the following:

Mate what is your actual problem this argument never happened I never said any of the words you claim, we had no heated discussion ever you wouldn't even talk to me face to face about anything anyway...I said one time to a client that we both agreed your behaviour was strange and definitely don't think saying thinking someone is conflicted and possibly has feelings for men is an insult. I definitely never meant it as one.

1. The respondent adamantly denies ever using the term 'gay' to describe the applicant, either to him or Ms Trajkovska.[35] He admits he thought the applicant was possibly attracted to men and that he used those words. This is consistent with his text messages to the applicant. He regarded this as different to stating someone was gay. I therefore do not accept the respondent said the words 'you're gay, you're gay, you're gay' to the applicant during the June PT Session. He did not use words to that effect in any of his text messages with the applicant. He was consistent in how he expressed himself to the applicant in both messages on 2 March 2019 and 28 June 2019 and before the Tribunal. Both agree that the PT sessions which followed the exchange on 2 March 2019 were normal and consistent with previous sessions. By all accounts, there were no issues in the continuation of that service.
2. I am also not satisfied the respondent used the kind of intemperate language described by the applicant during the June PT Session. Again, the text messages do not contain language of that kind.
3. The applicant based this part of his discrimination claim under section 20(c) on the respondent making the statement 'you're gay, you're gay, you're gay' in a hostile and aggressive manner in the June PT Session. I am not satisfied the respondent treated the applicant unfavourably because of a protected attribute and therefore I am not satisfied the respondent discriminated the applicant in the way in which the service was provided. In light of the above findings in relation to the June PT Session, discrimination under section 20(c) has not been established. There is nothing else about the June PT Session which equates to discrimination under section 20(c).
4. It is worth noting that both events the applicant relies upon have a common feature. The applicant initiated both. This required some kind of reaction or conduct from the respondent in relation to a topic or topics the respondent was not comfortable discussing. The applicant asked Ms Trajkovska to have a discussion with the respondent regarding his lack of social interaction with him. Unhappy with the result, the applicant confronted the respondent (some considerable time later) about his comments to Ms Trajkovska. Having initiated both interactions, the applicant's complaint appears to be generated by his dissatisfaction with the respondent's lack of socialisation with him and his opinion that he was possibly attracted to men. On both occasions the respondent was placed in a difficult position.

1. The applicant claims he was sexually harassed by the respondent.
2. The applicant contends that the respondent engaged in conduct that constitutes unwelcomed conduct of a sexual nature in circumstances in which he reasonably felt offended, humiliated or intimidated. Pursuant to section 58(1) of the Discrimination Act, such conduct is unlawful.
3. The applicant's claim of sexual harassment against the respondent is based on the following conduct:

(a) The respondent stating "I thought you were attracted to men" in a text message to the applicant.[36]

(b) The respondent saying to the applicant in the course of the June PT Session the words "you're gay, you're gay, you're gay."

1. Having found above that the respondent did not make such a statement in the June PT Session, the second of these claims is not established.
2. The respondent admitted, as is stated in the text message on 2 March 2019, that he stated to the applicant "I thought you were attracted to men." Does this amount to unwelcomed conduct of a sexual nature, and if so, did it occur in circumstances where the applicant was reasonably offended, humiliated or intimidated?
3. I do not regard the statement made by the applicant to be a 'sexual advance', nor does it appear to have been contended as such.
4. Section 58(2) of the Discrimination Act defines 'conduct of a sexual nature' inclusively as follows:

conduct of a sexual nature, includes the making of a statement of a sexual nature to, or in the presence of, a person, whether the statement is made orally or in writing.

1. Further, in Poniatowska v Hickinbotham,[37] Mansfield J observed:

...I think it involves some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so, or is a person of a character empathetic to such behaviour. It is not necessary or appropriate to set the outer bounds of conduct of a sexual nature.

1. As observed in Complainant 201808 v Transport Canberra and City Services:[38]

No court or tribunal has attempted a more definitive definition of 'sexual harassment' or 'sexual conduct.

1. Whether conduct may be characterised as sexual harassment cannot depend on the subjective response of the person the subject of such conduct except to determine it to be unwelcome.[39] Further, the subjective intention of the alleged harasser is not determinative of whether conduct amounts to conduct of a sexual nature. The test is objective.[40] The Tribunal must determine objectively whether conduct may be characterised to be of a sexual nature by construing the facts of a particular case.[41]
2. The Tribunal must therefore determine whether the expression 'I thought you were attracted to men' is objectively conduct of a sexual nature. The words themselves do not contain overt sexual connotation nor are they laden with sexual innuendo. At best they may be construed as characterising a particular sexual persuasion. The mere insinuation of a particular sexual orientation does not of itself rise to a level capable of being conduct of a sexual nature. Further, sexual orientation is not an offensive subject matter. If it were, any innocent enquiry that might be made of someone regarding their sexual orientation, for whatever reason, might be capable of constituting sexual harassment. I am not satisfied that, objectively, the statement constitutes conduct of a sexual nature.
3. However, where such comments are made on a regular and repetitive basis or form part of a broader pattern of inappropriate sexual conduct or where they are said using a particularly suggestive tone of voice, such comments may amount to conduct of a sexual nature.[42] I am not satisfied that is the case here. The respondent made the statement to the applicant in a text message for explanatory purposes in response to a set of circumstances largely created by the applicant.
4. The definition of sexual harassment also requires objective determination of whether it was reasonable for the applicant to feel offended, humiliated or intimidated having regard to all of the circumstances. Like the Tribunal in Complainant 201808 v Transport Canberra and City Services[43] observed, I find it difficult to disentangle the question of the reasonableness of the applicant's feelings from my finding that the respondent's comment was not sexual in nature. As I have found the statement does not constitute conduct of a sexual nature it is not necessary to consider the issue of whether the applicant was reasonably offended or humiliated further. Nonetheless, I accept the applicant was offended and humiliated by the statement. However, the statement is benign and when the circumstances in which it was made are considered, the applicant's response cannot be regarded as reasonable.
5. The allegation of sexual harassment in respect of the statement 'I thought you were attracted to men' made by the respondent via text message to the applicant is not established.

1. The Tribunal is not satisfied the respondent has engaged in an unlawful act of discrimination or engaged in sexual harassment.
2. The application is dismissed.

[1] Mewett v University of Canberra [2018] ACAT 61 at [11]

[2] Unlawful act for the purposes of the HRC Act has the same definition in the Discrimination Act which includes part 3 (unlawful discrimination) and part 5 (sexual harassment) of that Act

[3] TGD v Australian National University [2019] ACAT 81 at [65]

[4] TGD at [66] citing The State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board [1996] VSC 78 at [39(5)]

[5] TGD at [66] citing The State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board [1996] VSC 78 at [39]

[6] Transcript of proceedings 19 March 2020 at page 103

[9] Transcript of proceedings 19 March 2020 at page 80 and 103

[11] Transcript of proceedings 19 March 2020 at page 104-105

[16] Transcript of proceedings 19 March 2020 at page 96

[17] Transcript of proceedings 19 March 2020 at page 96

[19] Applicant's submissions dated 31 January 2020 at 24 and 25

[20] Discrimination Act, Dictionary

[21] Transcript of proceedings 19 March 2020 at page 123

[22] See above at 13(h) and 13(i)

[27] Transcript of proceedings 19 March 2020 at page 111

[28] Transcript of proceedings 19 March 2020 at page 61

[34] Exhibit A4; Transcript of proceedings 19 March 2020 at pages 106-107

[35] Transcript of proceedings 19 March 2020 at page 110

[37] [2009] FCA 680 at [294] (in relation to the Sexual Discrimination Act 1984 (Cth))

[38] [2018] ACAT 132 at [114]

[39] Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203 at [123] citing Hall v A & A Sheiban Pty Ltd [1989] FCA 72 at [46] per French J

[40] Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203; Forkin v Young [2020] NSWCATAD 29

[41] Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203; Forkin v Young [2020] NSWCATAD 29

[42] Forkin v Young [2020] NSWCATAD 29 at [59]

[43] [2018] ACAT 132 at 124