Finch v The Heat Group Pty Ltd [2010] VCAT 802 | Case summary

Finch v The Heat Group Pty Ltd [2010] VCAT 802 | Case summary | Zoe

[5]

This is a claim by Jo-Anne Finch against her employer, The Heat Group, and also against four persons employed by The Heat Group. It is a claim under the Equal Opportunity Act 1995. Finch says that The Heat Group discriminated against her on the grounds of her sex; because she was ill; and also because she was pregnant. She further says that in the course of her employment she was sexually harassed by two employees. Finally, she says that when she complained to her superiors about this discrimination The Heat Group victimised her because she had made that complaint.
Finch was first employed by The Heat Group in July 2002 and her claim spans four distinct phases of her employment.
The first phase is from July 2002 to July 2005. During that time she was employed as a Territory Manager. Her immediate superior was the National Field Manager, David Reid, until he left in 2005 and was replaced by the third Respondent, Peter Kadlecik.
The second phase is from July 2005 to June 2006. During that time she was employed as a State Manager. Her immediate superior as National Field Manager was Peter Kadlecik.
The third phase is a period from June 2006 to October 2006. During that time she was still working as a State Manager. Peter Kadlecik was promoted within the company to the position of National Business Manager and the fourth Respondent, Adam White, was appointed her immediate superior as National Field Manager.
Since 10 October 2006 Finch has not worked for the company, having lodged a successful WorkCover claim for work related stress. Finch's employment with the Respondents has not been terminated but she has not returned to work with the company.
The fourth phase is the period from October 2006 to October 2007. During that time Finch claims that the company issued her with a written warning which had the effect of victimising her for making a discrimination complaint. Finch also says that in October of 2007 Gillian Franklin issued an announcement to staff about Finch on behalf of The Heat Group which had the effect of further victimising Finch.
Throughout this entire period the first Respondent, Gillian Franklin, has held the position of Managing Director of the company, and from July 2005 the fifth Respondent, John Simcocks, has held the position of National Sales Manager, and was the immediate superior of the role occupied by Kadlecik until June 2006, and White from June 2006 onwards.

[6]

The Heat Group is a wholesale distributor of cosmetics and personal care items. It distributes cosmetics to pharmacies and to some department stores. It is a small and relatively new company, having been established in the year 2000 by Gillian Franklin who is the second Respondent in this proceeding and the Managing Director of the company. Its head office is in Wheelers Hill in suburban Melbourne.
The company operates in all states of Australia, although at the time of these events it did not maintain a physical office in any state other than Victoria. The company employs salespersons known as Territory Managers, who have responsibilities for particular geographic areas within a state.
The company sells to pharmacies, and to discount department stores, such as Target, Priceline, and other chains. Territory Managers spend four days out of five on the road visiting customers. As I have said, at the time the company had offices only in Melbourne; so on Fridays, Territory Managers based in Melbourne would attend the office to complete paperwork.
The company also employs Territory Service Managers. Such employees are not sales staff. Their job is to attend to merchandising requirements. For instance they make sure customers have sufficient supplies of stock, and that brand displays are properly kept within the pharmacies and stores. They work mainly with discount department stores, but also with pharmacies.
The next level of authority within the company is that of State Manager. The position of State Manager was created in 2005. State Managers have a responsibility for their Territory Managers and Territory Service Representatives within their state. That means that they are responsible to ensure that the Territory Managers achieve their individual sales budgets. State Managers also have separate sales budgets of their own.
The highest level of company management is that of the executive team. As I have said, Gillian Franklin was the founder of the company and since its inception she has carried out the role of Managing Director. Another executive position is that of National Field Manager. Prior to July 2005, the National Field Manager directly supervised the Territory Managers. Once the position of State Manager was created in July 2005, the National Field Managers directly supervised the State Managers, and had indirect responsibility for the Territory Managers.
Finch joined the company in the year 2002 as a Territory Manager. She worked in Victoria, and thus spent four days a week "on the road", visiting customers, and the fifth day, a Friday, at the head office in Wheelers Hill. She continued to work from the head office after she was appointed a State Manager in June 2005, in premises purpose built for the Victorian State Office of the company.

[7]

The incidents of discrimination are presented in a confusing way in the particulars of claim, and do not follow a strictly chronological order. These are the major factual allegations.
Finch complains that whilst she was a Territory Manager, and also when she was promoted to State Manager, she was given extra tasks to complete which were not within her role, and which were not asked of males in equivalent positions. She says that because she had to spend extra time on these tasks, she was unable to properly service her customers and her sales figures suffered. She says that the company, and particularly her immediate superior, Peter Kadlecik, imposed on her in this way because she was a woman, and did not ask males at her equivalent level to perform such additional tasks.
Her complaint is made in the context of an atmosphere which she says was hostile and intimidatory towards women, and which had the character of a "boys club", in which males in positions of authority gave preference to men in many unfair ways.
Thus Finch gave evidence of Kadlecik in his role as her immediate superior making hostile or inappropriate comments to her or about her. She gives examples of Kadlecik describing her as too passionate, of telling her she needed to "tone it down", that he would "strangle her if she did not shut up questioning him" and of other examples of him swearing and verbally abusing her and sniggering at her amongst other senior employees in her presence.
In June 2006 Kadlecik was appointed to the role of National Business Manager and the question arose as to who would be appointed to succeed him as National Field Manager. Finch says that when she enquired about the recruiting process she was told by Kadlecik that only a male would be good enough for that role, and that the role was subsequently filled by Adam White.
Finch informed White in August of 2006 that she was pregnant. She says that thereafter acts of discrimination occurred against her because she was pregnant. In particular she says that White started to take over her role and exclude her from decision-making.
Finch says that it became evident from July of 2005 that a decision had been made by senior management to "manage her out" of the company because of her sex. The further acts of discrimination relied upon between 2005 and 2006 consist of Finch's allegations that she was inappropriately disciplined and the subject of warnings as a result of her sex. She says that during that time various allegations were made against her, which were unsubstantiated and untrue.
She says that this is the setting in which between August 2006 and October 2006 White took over certain of her responsibilities as State Manager, diminishing her authority to her detriment.
In particular he recruited staff to the position of Territory Manager rather than allowing her to do so. He approved leave for a new member of staff without explanation to her. He discussed the performance of staff directly with them without consulting her and he conducted meetings and days on the road with her staff without consulting her. He approved staff pay rises without consulting her.
She says further that between July 2006 and October 2006 he questioned her about her maternity leave and threatened the future of her employment by requiring her to attend a meeting on 22 September 2006 to discuss her work performance issues whilst pregnant, thus increasing the risk of complication during the period of pregnancy. She says that ultimately the company unlawfully failed to pay her proper maternity leave entitlements.
Finch further alleges that from October of 2006 she was suffering from a condition of work related stress. She says that she was discriminated against by reason of that impairment in that she was bullied, harassed and intimidated by White during that time. In particular she relies upon White sending her emails about work issues whilst she was on sick leave, and insisting she attend work for a disciplinary meeting whilst she was ill.
Finch also says that she was victimised by the company and the other Respondents. She says that from the time when she first began to complain about differential treatment as between herself and other staff, the company would have recognised those complaints to be of unlawful discrimination. She says this was the reason for the hostile attitude displayed by the Respondents to her, and the reason for a process being initiated against her of attempting to "manage her out" of the company.
In particular the company sent her a written warning in January 2007, at a time when she was ill and pregnant. In July 2007 an email was sent by Gillian Franklin to all staff announcing that she was suing the company.
I have had a great deal of difficulty making sense of the amended particulars of complaint filed by the Complainant on 27 April 2010, which is the document on which this hearing has proceeded. Many matters are alleged in the document. In many instances it is unclear as to how the facts alleged are said to constitute discrimination, victimization, or harassment.
The final written and oral submissions of the Complainant did not address many of the issues contained in the particulars of complaint, yet Counsel told me all of the issues raised in that document were still live. I do not criticise Counsel for this, as she was clearly acting on her client's instructions, but this has left me with the difficult task of matching the wide variety of allegations and causes of action pleaded in the particulars of complaint with the evidence actually adduced in this proceeding.
Doing as best I can to summarise the facts on which she seeks to rely, her case appears be as follows;
1. First she says she was directly discriminated against by reason of her sex by the Respondents by -
  - (i) requiring her to do extra work than males were required to perform, thus causing her detriment because she had less time to attend to sales;
  - (ii) making an unjustified allegation against her of cheating at the 2005 sales conference;
  - (iii) not allowing her to share in favours given to men, such as the giving of tote bags and gift packs in a Covergirl and Foodworks promotion;
  - (iv) requiring her to demonstrate the Goldmine computer system when males were not required to do so, thus causing her detriment because she had less time to attend to sales;
  - (v) allocating territories of choice to males but refusing to allocate to her the territory she chose;
  - (vi) making a false allegation that she stole Myer vouchers when such an allegation would not have been made against males;
  - (vii) requiring her to orchestrate the giving of a gift to her male superior;
  - (viii) falsifying the company's figures to favour males over females;
  - (ix) unjustifiably giving her an oral performance warning on 16 June 2006;
  - (x) unjustifiably giving her a further written warning on 2 July 2006;
  - (xi) unjustifiably giving her a second oral performance warning on 22 September 2006;
  - (xii) unjustifiably giving her a second written warning on 4 January 2007.
2. In addition Finch claims that she was discriminated against once the company ascertained she was pregnant. She says this discrimination is constituted by -

[14]

The Respondents say that none of the accusations made are true. To the contrary, having been perceived to be falling below the standards required of her in her job, Finch was performance counselled and did not react well to that performance counselling. Thus the Respondents say that the events complained of are not only false, but even if proved by Finch do not concern any claim under the Equal Opportunity Act at all.
Gillian Franklin, the Managing Director and founder of the company was described by counsel for the Respondents as being the "heart and soul of The Heat Group". She presented as a woman with a significant history of commitment to the advancement of women within business, establishing a company which was predominantly staffed by women, and which offered to women paid maternity leave and flexible hours from the inception of the company and at a time when those facilities were unheard of in small companies.
It was suggested that Finch was the beneficiary of this supportive environment, being appreciated and supported in her work as a Territory Manager from the time she joined the company until 2005, and having been promoted from Territory Manager to State Manager in July 2005, with the endorsement of Peter Kadlecik.
The Respondents say that at the time of her promotion she was happy in her job and doing well in it. She had won awards between 2002 and 2005 and had received and given glowing feedback during this time. She described herself as a "superstar" and was appreciated in her sales role.
The Respondents say that none of the incidents described by Finch between 2002 and 2005 occurred in the way that she alleges. The Respondents further say that although Finch did carry out extra tasks in her position as Territory Manager, this was not unusual and the matters which she identifies as having been performed by her were performed by other Territory Managers as all staff had a responsibility to work together to achieve the best possible sales results for the company.
However, the Respondents say that even in the period leading up to Finch's appointment as State Manager there were some "gentle" rumblings of disquiet by reason of reports of her aggressive and competitive manner.
One example the company gives is the complaints Finch made in respect of the allocation of the Gippsland territory to Maree Saggers, an issue which I will explore in detail later in these reasons.
However, given that there had been no other significant issues and given that Peter Kadlecik championed her, other executives in the company including Gillian Franklin were prepared to accept that she would make a successful transition from Territory Manager to Sales Manager.
The Respondents also deny Finch's allegations that she was burdened with extra tasks as a State Manager, asserting that the tasks of which Finch complains during this period were carried out to a greater or lesser extent by all State Managers, regardless of sex.
The Respondents say that it became evident after Finch was appointed State Manager that her management skills were wanting. As Territory Manager she had been able to focus on sales and had achieved a great deal in that role. However, the State Manager position requires a person to be able to manage a team of Territory Managers and Territory Service Representatives. It requires a State Manager to focus less on their individual target and more on the team.
The company maintains that Finch had proven herself to be a very good sales person but not a good manager.
The Respondents say that this became apparent in about September 2005 with the first of a string of resignations of staff directly under Finch's control.
The first to resign was Bridget Lorenc. In handing in her resignation, she told Peter Kadlecik that she had resigned because she could not work with Finch. Lorenc told Kadlecik that she was scared of Finch because of her bullying and intimidation. Kadlecik was troubled about this complaint but continued to support Finch, giving her the benefit of the doubt, because of her previous sales success.
The Respondents say that the problem escalated in December of 2005 when the second member of Finch's sales team, Colleen Hall also resigned and in doing so also complained to John Simcocks about Finch's poor management style.
So far the complaints against Finch had been made by persons who were in her sales team.
However, by June 2006 the company had also commenced receiving complaints from head office staff. Those staff were Dora Ridlands, Renee Rosperich and Brandy Paris.
The company did not immediately act on those complaints, but was finally compelled to act following the resignation on 16 June 2006 of a third member of Finch's sales team, Sarah Larchin. Larchin had been recruited by Finch, yet also gave Finch's behaviour as the reason for her resignation. She said she had been bullied, intimidated and traumatised by Finch.
At around this time, Peter Kadlecik had been approached by David Zerafa and David Kemp, also members of Finch's sales team, about difficulties they had encountered with Finch's management style, and had also received complaints from head office staff about Finch. The company says that this turnover of staff and making of complaints was unprecedented within the company. The complaints appeared to have substance and the company had a responsibility to act on them.
Thus it was decided that Kadlecik and Simcocks would meet with Finch on 16 June 2006, the very day on which Larchin had resigned, to give her a warning in relation to these matters, with the intention of trying to resolve the issues that had been raised.
At the meeting, Kadlecik and Simcocks say they were disappointed by Finch's attitude during the meeting as she said outright that she could see no room for her to improve and she did not appear to accept the reality of the complaints.
Kadlecik and Simcocks say that their action in giving this verbal warning was based solely upon the receipt of complaints and the need to resolve the issue within the company, and not on gender. The verbal warning was made at a time when no-one in the company had any knowledge of her pregnancy and there was no issue of her being ill or impaired in any way.
The company says that at no stage and particularly not at this stage did the company have any intention to sack Finch or to demote her. The company says that despite these complaints, Finch was viewed as a valuable employee capable of achieving very good sales for the company and the company wished to solve the problem by developing her management skills.
The meeting was followed by a letter to Finch dated 2 July 2006 referring to the issues discussed at the meeting of 16 June, and requiring an improvement to Finch's "people management skills". The letter contained an offer for Finch to attend an appropriate course in management and noted that a further meeting would be scheduled in three months to review the improvement in her management skills.
Finch undertook the management training course a few weeks later.
After the meeting and letter, Adam White joined the company as National Field Manager and Kadlecik was promoted to National Sales Manager.
White met with Finch on 22 September 2006. He anticipated that he would be able to work together with Finch at the meeting to improve her now declining sales figures. However, at the meeting Finch refused to talk about ways to improve performance and continued to say that none of the figures were her fault. The company says that it formed the view she was in denial about these criticisms.
The Respondents say that by October of 2006 the company decided to give Finch a written warning to bring home the seriousness of the issue. The company says that the decision to draft the warning was done whilst Finch was still at work and before she had lodged any WorkCover claim and before there was any issue of her impairment or pregnancy, or claims of discrimination.
As at October of 2006 Finch clearly knew that her figures were low and that her scheduled performance appraisal had identified areas in which a great deal of improvement was required. She also knew as a result of the 16 June meeting that she was being monitored and that there would be a review of her performance in three months.
Thus White attempted to contact Finch on 10 October to ask her to come in for a meeting in order to give her the written letter of warning and discuss the contents with her. She refused saying she was too busy and tired, and the company was justified in thinking that she was attempting to avoid the further meeting.
This attempt by White to arrange for a meeting is relied on by Finch as discrimination on the grounds of impairment, as Finch says the company knew that she could not attend such a meeting because she was ill, and yet pressured her to do so. The Respondents say that there was no evidence or information available to the company to alert it that Finch may be away during this time for any medical reason, or not be able to come in for the meeting. Further, the company says it would have been happy to reschedule the meeting to any time or place nominated by Finch.
The Respondents say that it was not until receipt of a WorkCover claim for stress on 23 October 2006 that they found out for the first time that Finch was ill.
On receiving the claim the company referred it to its WorkCover insurers, QBE Insurance.
The company says QBE on its behalf sought to take advantage of s 82 of the Accident Compensation Act. This provision provides that an employee is not entitled to WorkCover for stress from performance counselling. Thus, Finch's WorkCover claim was initially rejected.
However, this argument was ultimately unsuccessful, and the company was ordered to make WorkCover payments to Finch. The company says that it was entitled to make that objection and did not discriminate against Finch in so doing.
The company says that once it was made clear that the claim was a valid one, the company paid Finch all of her WorkCover entitlements.
The company maintains that in acting in the way described above, it at no time treated Finch any differently to any other employee and that none of its actions, particularly in relation to Finch's workload, the attitude of her superiors towards her, the decision to give a warning to her or any other matter relied on by Finch were taken as a result of her sex, as a result of any impairment, as a result of her being pregnant, or as a result of the lodging of the claim to the Equal Opportunity Commission by Finch.
The company says that as at the time the WorkCover complaint had been received the written warning drafted by White in October of 2006 had still not been given to Finch as the meeting which the company was trying to arrange with her had not taken place.
Thus Gillian Franklin thought it important that the company should follow through on this process to get a record of the company's position in relation to those warnings. Therefore the letter itself was posted to Finch in early January of 2007.
Finch says that the letter was clearly sent at a time that the company knew Finch had lodged a complaint with the Equal Opportunity Commission, and knew that Finch was suffering work induced stress, and was pregnant. Thus she says the sending of the letter constitutes discrimination against her on the grounds of her impairment and pregnancy, and also constitutes victimization.
Although accepting that this letter was sent at a time after the WorkCover claim and Equal Opportunity Commission complaint had been lodged, the company's position is that it was sent as a consequence of decisions made in the October before, and was sent simply to ensure that there was a written record of that process.
The company says that throughout Finch's employment it has always acted fairly and responsibly and the difficulties have occurred as a result of Finch being a very difficult employee who will not listen and has no insight into her own conduct.

[15]

In order to support her case the Complainant has detailed many incidents which she says reveal a culture of lack of support to women, and of what she describes as a "boys' club" within the company. She asserts that although the company was predominantly made up of women, it was men who were in positions of power at the company and that the men protected each other to the disadvantage of women in general and, in particular, to her disadvantage.
Such a proposition is clearly difficult to establish, relying upon perception rather than explicit words. It is unlikely that any perpetrator would acknowledge such a policy or practice in the presence of witnesses, or provide any documentary evidence to support such a claim.
Often the Tribunal is placed in the position of having to determine whether such unlawful discrimination did take place by evaluating the testimony of the Complainant against the denial of the Respondent. There is no reason of principle why such a complaint should not succeed, even if there is no corroborating evidence to support it. I would be entitled to accept the unsupported testimony of a Complainant if I were satisfied that it was more probable than not that her account was true.
However, in the case of this Complainant the proposition that there had been such a culture of discrimination and intimidation, and the evidence she gave as to specific instances of discrimination, harassment and victimization, was weakened by the clear difficulties in credibility of the Complainant.
The Complainant filed extensive material in support of her claim, with many attachments. The Respondents also filed a significant amount of material and particularly emails generated by Finch or sent to her over the course of her employment. She was cross-examined about this material for six days.
In my view the cross-examination revealed the Complainant as a witness of little credibility. She forcefully claimed that she had been subjected to unlawful discrimination. Yet she was prepared to change her evidence as to crucial events when confronted by emails which did not support the accuracy of her expressed views.
There are many occasions in which she was caught out in what appeared to me to be a significant stretching of the truth. There were many occasions on which it seemed to me that she was evasive in answering questions and attempting to fashion what she thought was the best answer to fit the way in which she had pleaded her case.
I do not propose to recount each of the areas of inconsistency or unreliability disclosed in Finch's evidence. However, several examples appear below.
In her witness statement she complained that she was told by Peter Kadlecik that she was not allowed to use email. This instruction was given as an example of the culture of intimidation towards her as a woman. At paragraph 61 of the first witness statement she asserts this:

[21]

This evidence was clearly designed to indicate that Kadlecik was a man with no concern for his employees. Finch's evidence was that she told him that she thought this attitude was wrong and did not want to participate in such behaviour and that she sent an email to him telling him of this. She further said that she suggested Kadlicek should get some legal advice to see if his actions could be justified and he responded that she was being ridiculous.
When shown the actual email and attached document which clearly refers to and deals with the limited tenure of the position in an appropriate way, she had no plausible explanation for the inconsistency. She then claimed to recognise her email but not the attached document accompanying the email . Rather than admitting that the document was attached to her email she asserted that there was an earlier document she had seen which did not refer to maternity leave.
Her previous evidence had been that she had never seen the employment document. When asked to explain, she said that she must have seen something else or been told something else to indicate that there was nothing about the limited nature of the term of employment in the document.
It appeared to me in this exchange, as in many others, that she was prepared to make up her answers as she went along, attempting to fashion her evidence to explain away whatever documents were shown to her.
Another example in which Finch's evidence was shown to be exaggerated was that of paragraph 15 of her original statement in which she complains that she "never got any time available to take annual leave". In that paragraph she also alleges this: "I would also ask Peter if I could take annual leave from time to time and he would always say the time wasn't right and I was too busy."
In fact when shown her annual leave records for the years 2003 and 2004 it was apparent that she had had a significant amount of leave during each of those years. When faced with those documents, she responded that what she had meant to say was that she did not have long breaks of leave and only took short bursts of leave.
Finch asserted in paragraph 56 of her first witness statement that she found out during 2005 that the two male State Managers, Kim Martin and Patrick Duggan, were allowed to advertise for staff and that, in contrast, whenever she needed staff, Peter Kadlecik would always tell her that she should go out and find someone herself, and this was often a "hard task without proper advertising and made it harder for me to achieve my key performance indicators, when I wasn't even able to advertise for staff with sales experience."
When challenged about this she said in cross-examination that it was her understanding that only men were able to advertise.
However, various email exchanges were shown to her, between herself and Peter Kadlecik in which reference was made to her advertising without apparent restrictions. An example is exhibit 29 in which she herself had told Peter Kadlecik that there would be no need to advertise for a particular position.
Another example is exhibit 22 where Kadlecik authorises her to advertise if necessary although he indicates that he would prefer not to advertise in this case given the short timeframe involved.
It is apparent that in her witness statement she quoted selectively from an email chain to give the impression that she was prohibited from advertising when a reading of the entire chain shows that it had been authorised if necessary. In effect she elevated the comments of Peter Kadlecik to a prohibition when he had merely commented that he would prefer not to advertise in this one case, given the particular timeframes of the job in question.
It is true that she later emailed White asserting to him she was prevented from advertising when Howson was selected, but that assertion is in my view a misstatement of the true position. White gave evidence that he could not understand why any such discrimination would be in place and placed no such restrictions on her. I am satisfied that no such restrictions were placed on her by her superiors before his arrival.
The way in which Finch has described comments of Peter Kadlecik about recruitment for the role of National Field Manager reveal the same pattern of inconsistency. In the particulars of complaint it is asserted that:

[31]

Yet, despite the complete lack of evidence to support it, the Complainant maintained the allegation in her final submissions - an allegation that a person in a position of responsibility at the company had openly asserted that only a male would be good enough for a senior position - in exactly the same way as it had been pleaded in the particulars of complaint.
I accept the evidence of Kadlecik, that he made no such comment, saying only in response to Finch's query that he thought only Kim Martin would have the necessary experience to qualify him for the position. I do not accept that his comments can be characterised as revealing an attitude of bias towards men or against women, or that they were made in any derogatory sense.
Finch asserts that at the annual conference in 2005 in the presence of many other delegates she announced that she was deeply in love with her partner. She says that in response Peter Kadlecik said to the group "I'm not in that situation I feel the opposite about my wife".
Finch relies upon this comment as either part of the atmosphere of discrimination against females or otherwise as part of the atmosphere leading up to incidents of sexual harassment.
Kadlecik, Franklin, and Simcocks have given sworn evidence that this incident did not occur.
When she was challenged about her inherently improbable assertion that Kadlecik had announced to a roomful of people at a sales conference that he did not love his wife, Finch at first said "he did say that, yes." And then in the next breath said "he implied that, yes." The difference between these two assertions seemed lost on her.
I find as a fact that this incident did not occur.
In the documents on many occasions comments which were said to have been made by the Respondents are put in quotation marks, giving the impression that they are literally true as recounted.
However, on each occasion that such a comment was put to Finch in cross-examination, she significantly retreated from acknowledging that the words placed in quotation marks were a verbatim account of what was actually said.
Finch describes the behaviour of Peter Kadlecik at a meeting in July 2005 which was called to discuss restructure of commissions.
She says that during the course of the meeting when she asked for an issue to be clarified, Peter Kadlecik went through examples on the whiteboard and then said these words: "If she doesn't shut up I'll strangle her". She described him as being red-faced and angry and having shouted those words and that she was shocked at his behaviour.
This is an instance, she says, which demonstrates his antipathy towards her as a woman and the bullying behaviour she endured at his hands.
Significantly this incident is not described in any contemporaneous letters or emails and is not in her EOC complaint, although there is a general complaint of verbal abuse. She said in cross-examination that she did not raise it at the time because she did not wish to cause trouble.
However, the more damning evidence about this incident was her response on cross-examination when shown some other notes on company letterhead which she swore she had made very shortly after the event took place. In those notes this incident was described differently.
When cross-examined about the different description she said that she now recalled that Kadlecik had said he would strangle "someone" and that he had not specifically referred to her. She said that she thought the comment was obviously directed to her because she had been speaking just before it was made.
There are other aspects of the incident which were described differently in the note, such as the suggestion in the note that he said "you can leave if you don't like it."
In another example of Finch's disregard for accuracy in giving her evidence, at a later point in her cross-examination, notwithstanding that she had just conceded that her evidence was that Kadlecik had said that he would strangle someone, not that he had said he would strangle her, she repeated the allegation in its original form.
I do not accept that the incident took place in the way that she described it in her witness statement, or in the earlier inconsistent note.
Karen Campbell was also present at this meeting. She gave persuasive evidence that no such words had been used and I accept that this was the case.
The behaviour which Finch describes is completely inconsistent with her own contemporaneous descriptions of her relationship with Kadlecik contained on various cards and in emails, some of which I will refer to later in these reasons.
It is significant in this context and particularly in the context of the complaint Finch makes against Peter Kadlecik that she agrees that Peter Kadlecik was the person who recommended her for the State Manager position. However, her acknowledgement of this was, as was common with her cross-examination, only partial. When asked directly whether she agreed that he pushed for her to be promoted she said "possibly, yes" and when pressed further all she could say was "could be right, yes".
In her particulars of complaint, Finch alleges that she told Kadlicek between September 2003 and June 2006 that she was concerned about his treatment of female staff. A principal example on which she relies to prove this is described as follows

[37]

Finch made two separate complaints to the Equal Opportunity Commission. A person wishing to make a complaint under the Equal Opportunity Act to this Tribunal must first lodge a complaint with the Equal Opportunity Commission. Finch lodged her first complaint in December of 2006. The first complaint to the Equal Opportunity Commission was prepared by Finch herself.
The first complaint was unable to be resolved at the Commission and Finch filed particulars of complaint in this Tribunal in June of 2007. Those particulars of complaint were drafted by her. These particulars of complaint were replaced with particulars of complaint dated 10 August 2007 prepared on her behalf by a firm of solicitors.
It appears to have become clear shortly after the filing of the August complaint that Finch wished also to allege instances of sexual harassment and so an amended particulars of complaint was prepared by her solicitors containing those allegations. It was, however, not able to be filed at the Tribunal because it contained an allegation of sexual harassment which had not been in the original Equal Opportunity complaint.
Therefore the second complaint was lodged at the Equal Opportunity Commission in October 2007. When this complaint was unable to be resolved at the Commission her solicitors filed amended particulars of complaint in this Tribunal encompassing both discrimination and sexual harassment allegations.
Those particulars of complaint were dated 6 April 2008.
This was not the final particulars lodged in this proceeding. Finch amended those particulars in a further document dated 29 October 2008 in which further facts were asserted and the pleadings significantly altered.
It is understandable that there may be variations between facts alleged in a complaint to the Equal Opportunity Commission and in facts alleged in subsequent particulars of complaint in this Tribunal. This often occurs. A Complainant preparing these documents without the benefit of legal advice might understandably leave out some important facts necessary to prove a case, or not provide an adequate or full description of all the matters on which she was intending to rely.
However, a glaring omission from the first Equal Opportunity complaint and the first two particulars of complaint filed with the Tribunal is the lack of reference to any sexual harassment at all.
The Complainant said that this was because at the time those documents were written she was focusing upon the discrimination issues relating to the way in which she had been given a warning about her performance and that it was not until much later that her solicitor told her that she would have a claim for sexual harassment.
However, it is concerning that although she now makes allegations of sexual harassment against Kadlecik, in the original statement of complaint filed with the Commission in December 2006 Finch states categorically that she did not "experience any major difficulties with Peter Kadlecik prior to July 2005".
As I shall demonstrate, these words are consistent with Finch's comments in contemporaneous emails and performance reviews in which she unequivocally expresses her admiration for Kadlecik.
Further, she makes no mention at all in her first complaint of any sexual harassment by Darren Scotti or of any untoward sexual behaviour engaged in by John Simcocks.
This is in stark contrast to the graphic recounting of Simcock's behaviour in the second EOC complaint, where he is asserted to have been under a blanket on a couch with another employee at the 2005 sales conference - on the evening on which Finch says she was unfairly accused of cheating by Simcocks and Kadlecik. In the second complaint she goes on to recount rumours circulating at the conference that Simcocks and the employee had kissed and had sex at the conference.
This reliance on ugly rumour is a feature of the two witness statements filed by Finch in this proceeding.
The documents which she has filed in this Tribunal are peppered with descriptions of inappropriate behaviour by staff. Most of these examples amount to nothing more than the recounting of gossip which she says that she has heard from other persons who have not been called as witnesses in this case.
Many of these assertions - for example, an assertion in the second EOC complaint that Kadlecik was having sex with a staff member - appear to be little more than unattributed rumours. When this particular rumour was put to Finch in cross-examination she denied that she had ever asserted that Kadlecik was in fact having sex with an employee.
Given that the second EOC complaint asserts that Kadlecik sexually harassed Finch at the company's 2003 sales conference, I was also concerned about her responses in cross-examination where she asserted that she had "heard" about some things that Kadlecik had done "around the swimming pool" at the 2003 conference, rather than seen them, and her attempt when challenged, to change the evidence she had just given by saying that she had actually seen him at the pool but had not seen what he had done whilst in the pool.
The clear discrepancies between various accounts of sexual harassment given in the second Equal Opportunity complaint and the particulars of complaint which were filed subsequent to it are very worrying, particularly in the light of an email which Finch sent to a fellow employee, Rachel Brown, in November of 2007, at a time well after both of the EOC complaints had been lodged and three versions of the particulars of complaint in this proceeding had been filed in this Tribunal.
This email, being exhibit 36 reveals that Finch asked Brown for information as to the "goings on" at the 2003 conference. Clearly, the request was made to obtain information to support her case before this Tribunal.
In so doing, Finch comments about the conference generally, "I heard people did naughty things in their room". And specifically in respect of Peter Kadlecik's conduct at the conference, "I heard some things he did that night and I just wondered if you knew".
Her eagerness to gather marginally relevant information about the supposed sexual indiscretions of various members of staff reflected badly on her general credibility, and particularly the credibility of her claims that she had been sexually harassed.

[38]

I have expressed the view that the Complainant's evidence lacked credibility. Because of this lack of credibility, and given that the facts which she sought to establish were hotly contested by the Respondents' witnesses who themselves gave extremely credible evidence, my assessment of the reliability of the evidence called on the Complainant's behalf is crucial.
There was very little evidence which directly confirmed the Complainant's account of her treatment by any of the Respondents. Overall, the witnesses called by her have given evidence only in a very general sense supportive of the Complainant.
Some of those witnesses who worked for The Heat Group gave evidence of their perception that there was a culture of intimidation at the company. However, as I have said, there was little direct evidence from them as to any of the events on which Finch relies to establish either discrimination on the grounds of her sex, pregnancy or impairment or sexual harassment.
The Complainant's husband, Bush Barack Ndiedge confirmed Finch's evidence that she worked very hard and extremely long hours in her position as Territory Manager and State Manager. He also recounted her distress as events unfolded during 2006.
He said that on occasions some company employees had visited Finch at home, describing a "free and cordial atmosphere" between Finch and her staff. He said he had met most of Finch's staff, and they had told him what an "amazing" manager she was.
I will refer later to evidence he gave about conversations he had with various other Heat staff.
In the main, the evidence of Ndiedge was however simply evidence of what his wife had told him. It is of little value to me in determining whether or not the events which Jo-Anne Finch described in this proceeding before me, and also described to her husband, actually took place.
Patrick Duggan commenced to work for The Heat Group in November 2005 and worked there for only seven months. He worked in the capacity of State Manager for New South Wales.
Although Duggan gives many instances which he characterises as incompetence on the part of the company, there is nothing in either of his two statements which lends support to the view that the company's behaviour towards Finch was based on her sex.
There is one paragraph in his second statement describing him having had a conversation with John Simcocks on 16 June 2006 in which he told Simcocks that he was resigning. The paragraph goes on to say that he spoke to Simcocks about his perception that Peter Kadlecik treated Finch "poorly and differently to males".
The implication from the wording of the statement is that Duggan had recognised whilst he worked at Heat that Finch was being discriminated against because of her sex.
However, this implication vanished on cross-examination. When asked about this paragraph, his evidence was that he had not made any comment to Simcocks about Finch being treated differently to males.
His evidence was that he said to Simcocks that he should talk to other State Managers about Kadlecik as he thought several were experiencing the same problems he was with Kadlecik's management style. He said that he particularly mentioned Jo-Anne Finch as a good example to talk to because she would be forthcoming in her criticisms and because she had been there longer than some other managers.
Although he said that Finch had told him that she had some advertising restrictions placed on her, he knew nothing about this matter first hand, and his evidence was that there were no restrictions that he knew of in the company in relation to advertising.
Overall, Duggan's evidence was restricted in its value by the fact that he was employed by the company for only seven months, and he clearly left the company on bad terms.
Even so, his evidence was generally supportive of the evidence of the Respondents' witnesses in this case in that although he described the company in unflattering terms, he made no distinction between the treatment meted out to him and the treatment meted out to any females in the company and particularly Finch.
This is not a case about industrial issues in the company at the time of Finch's employment. Duggan's evidence tends to confirm that whatever those industrial issues were, they were not based on sex.
Alan Harmer worked for The Heat Group for three months from December 2003. He was engaged to develop an in-house warehouse to replace the previously outsourced supply chain and warehouse functions used by the Company. He was employed for a three months probationary period. It was clear from his evidence that he clashed with Gillian Franklin, and ultimately left the company at the conclusion of the probationary period. Franklin's evidence was that he left when she told him that she would not be offering him fulltime employment. His evidence was that he himself decided to leave the company.
Overall, apart from the evidence he gave of a lack of written policies within the company, his evidence was not supportive of Finch. He does not give evidence of any acts of discrimination against her or any acts of sexual harassment. Indeed, his evidence as to sex discrimination in the company is clear. In the words of his witness statement, "women were given equal and in some cases more than equal opportunity in employment. However, I saw no formal documented policies to that end."
When asked to expand on this statement in cross-examination, he said that the policies that existed in the company were favourable to women, in that women could work from home, whereas this was not available to men, and that although he would not describe the atmosphere as a "girls club", he was aware of the company's enlightened approach towards women and that he would not have agreed to work for the company if this had not been the case.
In my view the negative assessment he reached of the company as having a "blame culture" - a product of only three months association with the company- must be discounted to some extent as he clearly left the company after a significant disagreement with management. He appears to have been so upset about the way he was treated at the time that he approached a major shareholder to complain.
Further, there is a significant question mark about the accuracy of Harmer's recollection of events. He was emphatic in his witness statement and in giving evidence before me that Franklin was "furious" when he disclosed to Heat staff on leaving that he was engaged as a consultant, not as an employee. Yet he was shown an email circulated by Franklin at the time of his appointment clearly advising all staff of this.
I formed the view that Harmers own dispute with the company influenced the accuracy of the evidence he has given in this proceeding.
But in any event, as I have said, he did not suggest the culture of intimidation or blame was directed at women in general, or Finch in particular. On the contrary, he seemed to suggest that women were treated more favourably during his time at the company as a result of their sex.
Rhondalynn Korolak worked at The Heat Group from December 2004 to March 2005. Once again her evidence consisted of assertions that The Heat Group culture was one of intimidation, bullying and incompetence.
She is clearly very critical of Gillian Franklin and she says that at the time of her employment there were no bullying or harassment procedures in place.
However, there is nothing in her witness statement which suggests that Finch was dealt with in any particular discriminatory manner as a result of her sex. There is also nothing in her witness statement which supports any claim of sexual harassment. She said she "did not have a great deal to do with Joanne as she was in sales and therefore on the road quite a lot."
She also observed;

[40]

Finch relied upon Korolak's evidence of the company's stock ordering procedures to support Finch's claim that the sales figures allocated to Finch were not accurate.
Korolak gave evidence of inadequacies in the company's ordering system and the consequent amassing of a quantity of excess stock. However, her evidence as to this issue did not appear to relate directly to the question of whether or not sales budgets or figures were accurate. All that she was able to say about sales staff was that she had been told that the sales team did not want to sell this excess stock because they would not get commission on it, a proposition which was denied by Gillian Franklin.
Korolak does not suggest that the instances of what she describes as incompetence in dealing with stock had any basis in gender.
Korolak was engaged as a consultant and worked with the company for a period of between two and three months. In my assessment, although she gave her evidence forcefully, she was clearly mistaken in respect of several factual matters.
She insisted that she was employed in December of 2004 through to March of 2005. In fact I accept the evidence of Gillian Franklin and the contemporaneous email of 18 November 2003 which shows her to have been employed from November 2003.
Korolak worked closely with Harmer, and although she worked in the office, she was not involved with sales or sales staff. The evidence which she gave was thus limited to evidence which she had heard and evidence of the way that the company had treated her.
Although she gave evidence that two female members of staff had resigned in confrontational circumstances, it became clear on cross-examination that those incidents had occurred well before she had been employed by the company and her only knowledge of them was through having been told about them much later.
She gave evidence that she had not been shown any company policies, but as a short term contract consultant, it was pointed out that she may not have had the same access to these policies as employees.
Finch asks me to accept Korolak's evidence that when she complained to Franklin about the issues affecting her, Franklin did not take her complaints seriously, and that when she was ill, Franklin had no regard for her ill health. Finch says Franklin treated her in the same way as she had treated Korolak.
Franklin denied Korolak's allegations about these matters. As I will later outline, Franklin impressed me as a truthful witness. I think it is likely that the clash between Korolak and Franklin arose out of issues particular to their relationship, and do not see this evidence as suggestive of an overall attitude of indifference or hostility to staff complaints.
David Reid was the most significant witness called by the Complainant, as he had worked as National Sales Manager of The Heat Group for two and a half years from 2003 to 2005 and thus was Finch's superior in the time when she was employed as a Territory Manager.
Had there been a boys club, a culture of intimidation of females, or incidents of the type described by Finch, he could thus have been expected to know at least something which could support her claims, up until the time he left the company in June 2005.
Although he gave evidence that Finch had told him that she was dissatisfied with the way she was treated, his example of this when he gave evidence was limited to the issue of Finch not being allocated the Gippsland territory.
Although in his witness statement he had talked of Gillian Franklin having little tolerance and patience and of her mistreatment of others, he agreed on cross-examination that these words were an exaggeration. He said she was a tough taskmaster, but agreed there was a high turnover of staff across all areas and did not suggest that this turnover was in any way related to sex.
It is interesting that Reid was critical of Franklin, as Harmer gave evidence that Reid was unfairly protected by her. Harmer said that Reid's sales forecast figures were always unreliable, and continued;

[42]

This is perhaps only important as an illustration that within a relatively large organisation, people may perceive interpersonal relationships in quite different ways.
Overall Reid's evidence did not support Finch in the major issues which she complained had occurred during the time she was a Territory Manager, and in some respects positively undermined her evidence. Indeed at the commencement of giving evidence he disavowed three crucial allegations which had been made in the unsigned witness statement filed with the Tribunal.
Firstly, he said he had never heard of Finch making any complaint of gender discrimination to him or to others whilst he was at the company. Secondly, he did not agree that Finch worked well beyond 60 hours a week or that that was not the normal working hours for a manager.
But most glaringly, he disavowed an entire paragraph which had been written into his statement in which he had purported to recall Peter Kadlecik making inappropriate sexual comments to Finch. In fact, as the immediate superior of Peter Kadlecik in 2004 he agreed that he had rated him highly in his performance appraisal in the area of managing staff, an area in which he described him as having "excelled".
He said that if he had been aware of any discrimination within the company he would have raised it with Gillian Franklin and he would have expected that she would investigate it. In fact he went further to give evidence that he knew that Franklin would have looked into complaints of discrimination and taken them seriously.
The Respondents ask me to apply the rule in Jones v Dunkel 1959 (HCA) 8 to the Complainant. Counsel for the Respondent submitted that it was extraordinary that despite Finch's frequent references to the presence of witnesses during the events on which she relies, the only persons she has called are those who can give no direct evidence about the incidents of discrimination and sexual harassment alleged. There has been no explanation given for this.
Further, there were several witness statements filed by the Complainant of persons who appear to have had key roles in the events of which she complains. Those persons were expected to give evidence in this hearing, but have not been called and, once again, no explanation has been given.
The rule in Jones v Dunkel provides that in cases where the facts make it appropriate to do so, the failure to call a witness who could be expected to give relevant evidence may be used to assist the drawing of inferences.
Counsel for the Complainant reminded me that the rule should only be applied where it can be safely said that the absent witnesses are in the "camp" of the person against whom the inference is to be drawn. Otherwise, there would be nothing preventing the other party from calling such witnesses if they wished to do so and no reason to infer the evidence of the person not called would have not assisted the case of the person against whom the inference is sought to be drawn.
Counsel referred me to Ronchi v Portland Smelter Services Pty Ltd (2005)VSCA 83 in which this principle was considered and applied in relation to the calling of ex employees by an employer.
I do not propose to draw any inferences from the failure of Finch to call witnesses. It is notoriously difficult for an ex employee to locate witnesses to workplace incidents. Often a Complainant will have no way of ascertaining contact details for such witnesses. Often employees contacted will be reluctant to get involved, or be unavailable at crucial times. I propose to base my assessment on the witnesses I have heard from in this case, not those who have been absent.

[43]

Gillian Franklin is the managing director and founder of The Heat Group. She denied Finch's suggestion that the company was a hostile workplace for women, noting that the male to female ratio within the company has never been less than 75% female. She gave evidence of her commitment to the promotion of issues relating to women and said that within the company she had specifically promoted a female-friendly culture and was keen to accommodate working mothers.
Her evidence was that the company placed great store on its family-friendly environment and the benefits of that environment were embraced by many staff. Since the company was established in the year 2000 many babies had been born to staff who had taken maternity leave, two employees having taken maternity leave twice, and all but three of the staff taking maternity leave had returned to the company at the conclusion of the leave period.
However, her emphatic evidence was that in recruiting, her policy was to obtain the best person for the job and that no management or recruiting decisions were based on sex.
She also gave evidence that although there was not a dedicated human resources officer at the company because the size of the company did not warrant it, the functions of human resources were undertaken at the time of Finch's employment by either herself or the personal assistant at the time, Katrina Lawrence.
Franklin was not directly involved in managing Finch. Her evidence was that Finch would send her a gift with a card at Christmas and the card would always contain a note from Finch describing how much she loved working for the company.
Franklin gave evidence that she was told of disagreements between Finch and one of the other sales representatives, about credit for sales within a territory. She said that around the time that she found out about this disagreement she raised the matter with her and at the time she recalled being concerned about Jo-Anne's competitiveness and aggressiveness.
She had no direct knowledge of the territories issue but arranged a meeting between Finch and David Reid and Peter Kadlecik to discuss the matter. She said that at the meeting she explained to Finch that the matter needed to be dealt with by Kadlecik and Reid rather than with herself as they were the persons who were responsible for the decision.
Franklin's evidence was that neither at this time nor at any other time did Finch make any complaint to her that she was being discriminated against within the company in relation to this issue or any other issue by reason of her sex or in relation to any other attribute.
Her emphatic evidence was that Peter Kadlecik was very highly regarded in his position. She described him as an outstanding employee. Her observation of Peter Kadlecik's management was that he was liked by staff and she was not aware of any Territory Manager or other member of staff who had complained about Peter Kadlecik apart from Patrick Duggan.
Franklin's evidence was that Peter Kadlecik recommended Finch for the position of State Manager in 2005 despite Franklin's concerns about complaints about her aggressiveness and competitiveness.
Franklin gave evidence of her increasing concern about Finch from December 2005 when she became aware of a high turnover of staff in the Victorian team managed by Finch as State Manager. She said that she asked Kadlecik and Simcocks to find out the reasons and sort it out. She said that Kadlecik and Simcocks came back to her in May 2006 and told her that a number of staff had raised the issue of Finch bullying them.
From the discussion she formed the view that they considered the complaint had substance and they were genuinely worried about the situation. She said that she was told that complaints had been received from Rene Rosperich, Brandy Paris, and Dora Ridlands. She said she spoke to each of these staff members to ascertain what the issues were and was dismayed when each of those persons separately described to her problems they had encountered because of Finch's aggressive style and competitiveness.
She said she therefore asked Kadlecik and Simcocks to follow this up quickly to find out what was needed to correct the situation. They told her they would speak to the sales people involved and speak to Finch. She said that this high level of turnover and dissatisfaction in the Victorian office was something that she had never experienced in the company and she decided it was a priority to find out the causes and put together solutions.
Kadlecik and Simcocks reported back to her again that they had investigated the matter and were very concerned about what they had been told about Finch's behaviour towards staff beneath her and also towards staff at head office. They told Franklin that they would be meeting with Finch and would give her a warning regarding her management style and talk to her as to how she should change her style and be more supportive.
Franklin said that the standard procedure for disciplining staff involved what she referred to as the three steps process. This meant that a verbal warning would be given with a three month follow up after the verbal warning. If the performance issue had not been addressed satisfactorily in that time a second warning would be given in another three months and then if there was still no change in performance the person would be dismissed. Franklin agreed with Kadlecik and Simcocks to put this process into place with Jo-Anne.
John Simcocks was National Sales Manager of Heat from 2005 to 2007**.** He had limited contact with State Managers during that time, as State Managers reported directly to the National Field Manager. He had been working for the company for only a few weeks when Finch was promoted to State Manager. He became involved with the issues surrounding the 2005 Sales conference, as he was responsible, together with Peter Kadlecik, in devising the conference and the group building exercises held over the 4 days of the conference.
He also gave evidence of the circumstances leading up to the verbal warning to Finch on 16 June and events thereafter.
Adam White, who was employed as National Field Manager by the company replacing Peter Kadlecik in that role in 2006 was Finch's direct superior from the second half of June 2006. He gave evidence confirming Franklin's evidence as to the approach of the company towards staff in general and Finch in particular.
He gave evidence that he had been told when he joined the company that Finch had previously received a warning in relation to her employment. However, his evidence was that he was intentionally not given details about the warning in order to allow Finch to start with a clean slate in her relationship with White as a new National Field Manager.
Specifically his evidence was that he was not aware that the warning was to be reviewed in three months or that another meeting needed to be planned for three months time to discuss her performance.
White specifically denies that in any of the conversations he had with Finch he used inappropriate or abusive language or that he acted at any time in a manner which would make her feel bullied, harassed or intimidated.
Further, his evidence is that at no time did Finch ever raise with him any concerns about the treatment of female staff or any claim that she had been discriminated against in her employment by reason of her sex.
Finch made allegations to Franklin about improper behaviour of White at the 2006 sales conference. She said she witnessed White having grabbed two staff and thrown them in to a glass door.
Franklin gave evidence that the first occasion on which she received a complaint from Finch as to this was an email received by her on 12 October 2006 from Finch. She said that she was concerned about the allegations that had been raised in this email about Adam White and asked her for further details so that she could investigate.
She said that she investigated White's behaviour by speaking to Simcocks. After having done so she was informed that White was intoxicated after the dinner at the conference in August of 2006. Simcocks told her that he had dealt with the matter and given White a warning for his behaviour.
Franklin said that she also rang two other employees, Holland and Whaley, who were the two employees Finch had said were involved, and asked them what had happened on the night of the conference dinner. From those investigations she concluded that White had drunk too much but that there was no unwelcome sexual behaviour and that no other parties involved had felt intimidated or harassed.
Nonetheless she met with White and told him that if he consumed alcohol at any Heat function in the future he would be dismissed. In Franklin's estimation White appeared quite embarrassed about his behaviour, accepted responsibility for it and undertook not to drink at any work functions. She said that there was no further difficulty experienced by the company with White's behaviour.
I presume that this incident is relied on by Finch as an example of the hostile and aggressive environment of the company. It is not relied on in the particulars of complaint as constituting any act of discrimination or harassment against her.
It is important to note that in the email from Finch to Franklin dated 12 October 2006 Finch does not suggest that any of the aggressive behaviour or sexual advances which she relays in that email were made towards her.
Franklin relies on the way she handled this complaint as an example of the company's appropriately strict approach when responding to complaints of unwelcome behaviour by staff. Certainly no criticism was made by counsel for the Complainant to the way in which this incident was handled by the Company.
Within a month of White commencing at the company, he conducted Finch's regular performance review, and on the 22 September he met with Finch to discuss her sales performance.
David Kemp worked as a Territory Manager under Finch. Although he commenced to work for the company as a data analyst, he was moved to the position of Territory Manager under Finch in 2004. Finch says his appointment as Territory Manager was engineered by Kadlecik, and is another example of Kadlecik using his position to advance a male.
Kemp's evidence was that Kadlecik had nothing to do with his appointment. He said it was suggested to him by Franklin and David Reid as a way of keeping him in the company, even though his previous position had been made redundant.
Franklin confirmed that Kadlecik was not involved in the decision. It was one that she had made herself based upon the strengths that she had observed in Kemp as an employee and her wish to keep him employed with the company.
Finch also complained that the company showed favouritism to Kemp in calculating commission payments or sales figures.
Franklin denied that any such favouritism occurred. Her evidence was that all staff were treated in the same way and rewarded equally for their results. Her evidence was that she personally reviewed all parts of the budget make-up and the results for each salesperson on a regular basis and that Finch would have had no knowledge about the criteria which she used in doing so.
Bridget Lorenc was a Territory Manager in the Victorian sales team under Finch from July to September of 2005. She was the first of Finch's team to resign, citing as the reason that she could not continue to work under Finch. She did so on 19 September 2005. At that time Finch had been a State Manager for only three months.
Lorenc initially had a good working relationship with Finch . However the relationship deteriorated over time, and she recounted instances of bullying and intimidatory behaviour directed at her from Finch leading up to her resignation.
It is not necessary for me to recount all of the incidents described by Lorenc in her evidence. In her words in the witness statement, "it was really the little things that all added up together to make it not very nice." She said that she had no choice but to resign from Heat because she would go home and cry at night because of the way that Finch had treated her.
She said she met with Finch on the morning of her resignation for a scheduled performance appraisal. She said Finch spoke to her aggressively and in an accusatory manner during the appraisal, not allowing her to speak in her own defence.
She said she did not discuss resigning with Finch, but later that day went to Kadlecik and resigned, later giving him a typewritten letter of resignation.
She said she later met with Kadlecik and Simcocks and outlined her concerns with Finch. The notes of that meeting are also in evidence and Lorenc identified the matters in the notes as accurate.
She said she was upset to leave Heat but with Joanne she could "do nothing right".
Lorenc also gave evidence about two incidents at the 2005 conference in Sassafras.
One of the incidents has not been referred to by Finch or any other witness. It was an incident during which the teams were divided into teams for certain activities and in which she and another person in the Victorian team, Colleen Hall, were both in Finch's team. She said clues for a competition were placed under pillows, and were to be collected during the conference, to be used to answer a question on the last day.
She said that Finch had found out the answer to the question and planned the incident ahead of time and then when they were given the task the team pretended they were thinking about it and got the answer straight away.
She recalled that one of the other teams realised that the answer had been discovered too quickly and told Peter Kadlecik and John Simcocks that Finch's team had cheated. She said that Finch had admitted to her that she had been called in and spoken to by Kadlecik and Simcocks and that she had denied to them that she had cheated, although it was clear that she had.
Lorenc was not cross examined about this incident, and the incident is not referred to at all in any of the Complainants evidence. I find that it occurred as Lorenc described it. It is another example of Finch's lack of respect for the truth.
Lorenc also gave evidence that she was present during the incident relied on by Finch as being the false accusation of cheating incident. I will refer to this evidence later in these reasons, but it is noteworthy that in giving her evidence about this second incident she supports Finch's account of this incident to some extent.
Her preparedness to do so, despite the trenchant criticisms Finch makes in her second witness statement of Lorenc's veracity, competence and personal behaviour, gives a colour of truth to her evidence overall.
Finch suggested Lorenc had been coerced by Simcocks and Kadlecik into complaining about her at the time of her resignation. It was clear from Lorenc's evidence that this was not so. Indeed, Lorenc's evidence was that at her meeting with Simcocks and Kadlecik - a meeting which took place three months after the 2005 sales conference, and after the happening of many of the events about which Finch now complains, they spent much time saying how impressed they were with Finch.
Kim Martin was the State Manager for Queensland during Finch's employment and he still holds that position. His evidence confirmed that of others of the Respondents' witnesses, that it was common for a Territory Manager to assist new employees in training and that he considered it to be part of the job. He also said that he considered it a part of his job to show new employees how to use the Goldmine computer program and that he did so.
He also gave evidence that working as a Territory Manager or State Manager was not a 9 to 5 job and there had been occasions on which he had worked 60 hours in a week to get something done. He further gave evidence that there was no difference in the company in expected hours based on gender.
A substantial part of his evidence related to the circumstances in which gift packs were sent to him.
At the annual sales conference in 2006 Finch alleges that Kim Martin was favoured over other employees, receiving a large commission payment and his state winning state of the year. Franklin's evidence was that these awards and payments were based on objective sales results and not on the fact that he was a male.
At paragraph 121 of Finch's witness statement it is suggested that Martin removed his pants during a meeting to show staff his underwear. Martin emphatically rejects this allegation. I regard this as another example of Finch's propensity to make a serious allegation of impropriety without any regard for its accuracy. It is clear from Finch's statement that she did not claim to have witnessed this incident. She did not produce any evidence at all that this incident occurred.
I accept Martin as a witness of truth, and I find that this incident did not occur.
Karen Campbell worked at Heat initially as Territory Manager and then as State Manager for Western Australia and is still employed by the company. She gave evidence about the extent of her role as a Territory Manager and as a State Manager and confirmed the evidence of others of the Respondents' witnesses that in those roles she would be required to do many other extra activities such as teaching new staff, going out on the road with new staff, and managing clients in other territories for short periods of time.
Further, she gave evidence about the 2005 conference at which Finch was accused of cheating. She gave evidence that she believed that Finch's group was working on the next day's project. She later overheard Simcocks and Kadlecik speaking to Finch, telling her that they were very disappointed in her. However, in her view this conversation was not aggressive and the manner of Simcocks and Kadlecik was in contrast to that of Finch whose manner was aggressive and forceful.
She also confirmed the evidence of Franklin that the company had a very supportive atmosphere for staff and that there was no evidence of a boys' club or any favouring of males.
Katrina Lawrence was personal assistant to Gillian Franklin during the time of the events complained of by Finch. She gave evidence that the company was very family friendly and particularly supported women with children. She had herself twice taken pregnancy leave and described the company, including the men employed in the company, as having been very supportive to her during that time.
Her evidence was that as well as performing office manager functions and assisting Gillian Franklin, she has taken responsibility for human resources functions within the company and that many members of staff speak to her about staff issues.
As the principal person responsible within the Company for maintaining the company's policies and procedures and assisting staff to access them, Lawrence's evidence was significant on the question of whether there were policies in place covering equal opportunity and pregnancy leave, and the difficulty of staff in accessing such policies.
Finch makes an allegation of inappropriate conduct against Lawrence at the 2005 conference. She says this at paragraph 120 of her witness statement:

[45]

Lawrence denies that any inappropriate conduct occurred. I can see no reason for the inclusion of comments such as this other than as an attempt to besmirch the reputations of others. I accept Lawrence's explanation that Simcocks drove her to her room as it was raining heavily, but did not enter her room, whilst noting that whether he did so or not is of marginal relevance to any of the issues in this proceeding.
Anita Aguado is presently employed by The Heat Group as a Territory Manager, having been employed in that position since October of 2006. Thus she was at the company for only about two weeks in total before Finch effectively ceased working with the company.
Aguado had known Adam White, the person who replaced Kadlecik as Finch's immediate superior in July 2006, when she worked with him for a previous employer.
Finch claims that Aguado was hired by Adam White at the time when White was the National Field Manager, without White consulting with Finch at all, notwithstanding that Finch was the relevant State Manager. Finch says that the way in which she was sidelined in the process of appointing Aguado, and particularly the way in which White approved leave for her at the time of her appointment, shows the way Finch was treated by the company.
Aguado also gave evidence of having taken a trip with Finch to Geelong in October 2006 to visit some of Finch's clients, during which Finch insisted on lifting boxes of stock, resulting in some bleeding. Her evidence was that she drove Finch to the Geelong Hospital, but even thereafter Finch refused to slow down and was still keen to work. Aguado became concerned that Finch did not appear to be heeding her doctor's advice and was continuing to unnecessarily push herself, insisting on keeping an appointment on the way home to see a client..
This evidence was led to contradict the evidence of Finch, that after she attended the hospital on this occasion she was becoming more and more concerned about the wellbeing of her unborn child and that the company would have known of her fragile health. In contrast Aguado's evidence was that Finch refused on numerous occasions her offers to visit her and that Finch continued to do unnecessarily strenuous work even after visiting the hospital.
This evidence was also significant as Finch contends that Adam White knew of her visit to hospital, and thus her illness, in early October, at the time he requested her to meet with him to discuss his concerns with her performance and at which he expected to give her the final version of the draft warning letter which had been prepared.
I will discuss this issue further later in these reasons.
Helen Petropoulos is presently employed by The Heat Group as Territory Manager having commenced working for the company in December 2005 as a Territory Service Representative. She gave evidence as to the existence of company's policies in relation to maternity leave and harassment, during the time that Finch was the State Manager.
She said it was apparent from comments made to her by other staff that there were significant difficulties with Finch's management style. She gave evidence that she herself did not have those difficulties but that she had witnessed staff making complaints about Finch.
She was present at the meeting between Kadlecik, Simcocks and field staff called to discuss complaints about Finch in June 2006 but recalled little of the conversation and could not be sure about the precise date on which it was held. She said she "tuned out" as she personally had no complaints about Finch, but recalled other members of staff did make complaints about her at that meeting.
She denies the allegations made by Finch in relation to her behaviour and in relation to the events said to have occurred at the sales conference in 2005.
She gave emphatic evidence of seeing Finch drunk when she returned to her room which she shared with her at the 2006 state conference. Petropoulos had not herself been drinking that night.
She described Finch returning to the room very late - she estimates at 4.30 am - unsteady on her feet, slurring her words, and repeating inappropriate statements - the instance she gave was Finch declaring several times that she would "chop her boyfriend's balls off" if he was unfaithful.
This evidence was presented as relevant to Finch's sobriety on the night on which she alleges that she was sexually harassed by Darren Scotti.
David Zerafa worked for the company as a Territory Manager in Western Victoria during the time that Finch was in the position of State Manager.
Finch claims that the employment of Zerafa as a Territory Manager in October of 2004 was an example of favouritism towards males, as Zerafa and Simcocks, she alleges were friends, and she was instructed by Simcocks to employ Zerafa against her better judgment.
She also says that in offering employment to him White took over her role and excluded her from the decision-making process. He said White did so because she was pregnant.
Zerafa gave evidence supporting that of Franklin and Kadlecik as to the company's policies and the lack of any discrimination within the company on the grounds of sex.
His evidence was that he did not think Finch was good at mentoring or coaching her staff and that he would from time to time receive a derogatory email from her. He also gave evidence that he heard various members of staff complaining of her bullying.
In particular he said that at the 2006 sales conference he recalls her being strangely quiet and making no attempt to build camaraderie within the Victorian team, although he acknowledged that the conference teams were not state based.
Some emails sent to him by Finch in August and September of 2008 were produced by Finch, to demonstrate evidence of her support of him and to rebut Zerafa's criticisms of her management style. Some were group emails regarding figures, but others were personal congratulations on him achieving high results, such as "Well done David top job" and "Well done David that's awesome".
Zerafa said he did not view these emails as significant, as it was standard policy for congratulatory emails to be sent, and that his concern at that time had been that she communicated only by email, and not personally with him, or in his observation with other members of field staff over that time.
Although the principal witnesses called by the Respondent gave evidence that three of Finch's staff had resigned as a result of difficulties with Finch, Zerafa said there were four. He included in his figure Fiona Laurens, whose stated reason for leaving the company was that she had obtained a job working on a sheep station. He said he recalled her resignation vividly, as it occurred at his first day at the company. He said Fiona had whispered to him that she was resigning because of Finch.
Vicki Malliaros worked at head office of the company from January 2001. She gave evidence as to the circumstances surrounding the missing Myer vouchers. She described Kadlecik as being very well liked and a great manager and said that no-one had a bad word to say about him, not even Finch.
She confirmed the evidence of the other of the Respondents' witnesses in relation to the female-friendly culture of the company.
Darren Scotti was employed by the company as chief financial officer and thus was part of the executive team. His evidence was that he did not have a lot to do with Finch on a day to day basis and that Finch had never ever complained to him about sexual discrimination.
He gave evidence of having been at the company's 2005 Xmas party. Finch alleged that he had engaged in unseemly and drunken conduct at that party. He said he was fairly reserved in interacting with other staff at the party, as he was only new to the company, and left early, taking a taxi home alone. I accept his evidence.
Scotti met with Finch at her home on 17 December 2006. He was responsible for sending the letter of 4 January 2007 to Finch, the company's response to her WorkCover claim, and also the handling of the EOC claim.

[46]

I was very impressed with the witnesses called on behalf of the Respondents. Gillian Franklin, John Simcocks, Peter Kadlecik and Adam White, the persons having principal roles in the events described in this proceeding, all appeared to have good recollection of the matters of which they gave evidence and impressed me as truthful witnesses. Their credibility was not dented in cross-examination, and apart from some inconsistencies which I have dealt with later in these reasons, the evidence of each buttressed the other.
The balance of the Respondents witnesses were called as they had been named by Finch as having participated in the discriminatory behaviour in various different ways. Two were State Managers at the time of these events - Karen Campbell and Kim Martin. Four were members of Finch's sales team - David Zerafa, Helen Petropoulos, David Kemp and Anita Aguado - although Aguado had only two weeks at the company before Finch went on sick leave. The rest were head office staff - Katrina Lawrence, Vicky Malliaros and Darren Scotti.
Most of these witnesses still work for the company, and it would be natural that their evidence would support their employer. However, it was my impression that every one was genuinely attempting to recall the events to the best of their ability. Each appeared to have a clear recollection of the major issues of importance, though clearly with the passage of time, recall on subsidiary matters was limited.
The evidence of those witnesses who had left the company did not significantly differ from those who still worked there in most respects.
To some extent cross-examination of all of the witnesses in this case was constricted by a decision made by both counsel to not cross-examine on areas which had been the subject of answering material. This was done to attempt to shorten what has proved to be a very lengthy trial. Both counsel agreed that the rule in Browne v Dunn would not be invoked. This had the effect that some of the major allegations in this case were not the subject of oral evidence, although dealt with in detail in witness statements.
However I was satisfied from the evidence I did hear from the Respondents witnesses that their evidence was reliable and credible.
Counsel for the Complainant submitted that the Respondents' witnesses were lacking in credibility, and directed me to four examples.
Firstly she said inconsistent accounts had been given in relation to the "cheating" incident, in that some witnesses identified different people as having been present on different occasions. I will explore these differences more fully when discussing the incident itself. There were certainly some differences in what was recalled as having been said by the Respondents, and one witness asserted that the incident occurred in the afternoon, whereas the incident clearly took place at night.
Secondly counsel suggested that Simcocks evidence of hiring of Zerafa was inconsistent with his email to Finch.
Thirdly, counsel pointed out that Kadlecik and Malliaros had given inconsistent evidence as to the timing of events surrounding Sarah Larchin's resignation.
And finally, she pointed out the inconsistency between Kadlecik's assertion that Helen Petropoulos had told him she felt pressured to change her assessment by Finch and Petropoulos own evidence that she had no difficulties with Finch.
However, these witnesses were asked to describe incidents which took place over five years ago. Four of the Respondents' witnesses no longer work for the company. Overall, given the length of time which has elapsed I do not regard these differences in evidence as being more than minor. Differences such as these indicate an absence of collusion, rather than reflecting adversely on credibility.

[51]

Thereafter, the particulars of complaint do not refer to this issue of the existence of family friendly policies as providing the ground for any equal opportunity complaint. Finch gave evidence that the culture of the company was in fact one of harassment and intimidation. I am unsure as to whether Finch seeks to assert that the matters referred to in the paragraphs I have quoted support a discrete ground of discrimination, or are matters of background.
I have treated these allegations as being relevant to the likelihood that the discriminatory and harassing behaviour alleged took place. That is, if I am persuaded that the company made false claims of its commitment to equal opportunity, the evidence of its witnesses may be less likely to be believed on the question of whether the discrimination alleged actually occurred.
Finch gave evidence of the intimidatory atmosphere of the company, which she described as a "boys club." She relied on evidence from three witnesses to support her allegations. All three had resigned from the company or not been reappointed by the company.
Duggan said that the company gave no support and the organisational structure of the company was impossible to work under. He said that his own authority was constantly undermined and when he would ask for support from Peter Kadlecik, he said "he would just tell me to get it done". He gave other examples of what he thought were incompetence and mismanagement in the company.
Harmer gave evidence of general mismanagement within the company and he gave examples in which he believed Gillian Franklin had dealt with staff unfairly. As I have said, he particularly said that Franklin had favourite staff, and identified David Reid as a clear favourite.
Although he claimed to have been in a position where he could form accurate impressions about company management and staff morale, it was clear that his focus of work was on the warehouse and issues relating to the supply chain, and that he never worked closely in areas of management or finance in the company.
Karolak thought the company atmosphere was one of intimidation, bullying and incompetence.
However, as I have pointed out, none of these witnesses suggested the company was a "boys club" or observed any gender discrimination against Finch or any other employee.
The Respondents' witnesses, both those working for the company now and those who have since left, all gave evidence of a supportive environment within all levels of the company.
Karen Campbell, presently WA State Manager, who briefly left the company for a period after the events the subject of this claim, described Franklin, Simcocks and Kadlecik in these terms:

[53]

She scoffed at the suggestion that the company was a "boys club", and said that she returned to Heat after a period of absence because she missed the culture of the company.
Vicky Malliaros, who worked for Peter Kadlecik from 2003 to 2007 agreed, saying she never felt she was not part of the team because she was female.
Helen Petropoulos said that she was particularly vulnerable when she joined The Heat Group as she was young and it was her first fulltime job. However, she said she never experienced any harassment or intimidation at the company, and described the atmosphere and the men as professional, polite and happy.
Anita Aguado also denied the existence of a "boys club" and said she became very ill whilst pregnant and the company supported her very generously during that time - although the evidence she gave relates to a period well after the events of which Finch complains.
The assertion by Finch of a culture of intimidation sharply contrasts with her own contemporaneous descriptions of the company, and various of the Respondents.
Scotti gave evidence of Finch having described the company to her in glowing terms when he first met her and spent time on the road with her in 2005. He said she "waxed lyrical" about Franklin. He said his desk was close to Franklin and he observed Finch regularly attend at Franklin's desk to speak to her in an informal manner during this time, without any sign of uncomfortableness.
Finch agreed in cross-examination that in the period 2002 - 2005 she had a generally happy relationship with her colleagues and had no major problems over that time.
This was supported by her performance appraisals in evidence from April of 2003, October to December 2004 and 1 March 2005 in which her performance was rated extremely highly by Peter Kadlecik and the comments which she makes about him are flattering in the extreme. She describes him as a "wonderful manager" and describes herself as "thoroughly enjoying her job."
Finch makes particular complaint of the behaviour of Peter Kadlecik towards her in the period 2002- 2005.
She asserts that he said to her in the presence of other staff that she was "too passionate", needed to "tone it down", he would "strangle her if she did not shut up questioning him", and that he swore at her, verbally abused her, and sniggered at and derided her in front of senior staff.
These allegations are put forward as particular examples of discrimination, and as further evidence of the intimidatory atmosphere under which she worked.
This evidence appears to be at odds not only with the evidence called by the Respondent, and also at odds with statements made by her in the period between 2002 and 2005 about Kadlecik, some of which I have reproduced above.
I think it most unlikely that any of these statements were made in the manner alleged by Finch, given her own material to the contrary.
There is a pattern of consistent praise by Finch of the company, and the individual Respondents from 2003 onwards.
On 14 December 2003 she emailed Gillian Franklin:

[56]

Further she agreed on cross-examination that during this time she regularly bought gifts for staff including a CD for Gillian Franklin and a CD which she said she gave to Peter Kadlecik for his wife.
Her explanation about this was that she felt obligated to do so or people would think that she did not like them any more. In fact sometimes she would cry when preparing the gifts because she did not want to give gifts but felt obligated to do so.
I totally reject this explanation as self-serving and completely inconsistent with the evidence of her own performance appraisals and emails written during this period.
Finch alleges that in 2005 she was asked by Peter Kadlecik to secretly organise to purchase a gift for him to be handed to him on behalf of all staff. I presume that this incident is put to attempt to establish that Kadlecik wished her to enhance his reputation. I presume also that it is relied upon as showing that she as a female was asked to do something which a male would not have been asked to do.
The allegation, inherently unlikely, was denied by Kadlecik and demolished by the evidence of Karen Campbell that it was in fact her who organised the gift for Peter Kadlecik in 2005 and that she did this without any involvement of Finch. She said she did so as she had been embarrassed at the conference the year before that there was no acknowledgement of Kadlecik's contribution.
It is interesting to note the comments which Finch made on Kadlecik's Thank you card in August 2005 when the gift was presented to him:
"What a long way we've come together. I hope you're as proud of my achievements as I am of yours! You're an amazing leader. Luv'n'stuff Joanne"
I do not accept that there was a company culture of intimidation or discrimination against females.
However, even if the evidence called by Finch was accepted, and the evidence of the Respondents' witnesses rejected, the only relevance of this evidence can be as background to Finch's complaints of discrimination in the individual instances on which she relies.
This evidence must show a differential pattern directed at females, or pregnant females, or persons with an impairment. This is not an unfair dismissal case. My concern is not to establish whether Finch or any other employees were treated unfairly by the company. My concern is to decide whether Finch has been discriminated against within the framework set out in the Equal Opportunity Act.
There is however, one significant way in which my findings about the company culture are still relevant. Having determined that Finch's allegations as to the company culture are overblown and inaccurate, I propose to use this determination as reflecting on the credibility of Finch's evidence as to the principal acts of discrimination alleged by her.

[57]

Although Finch claims that she was unlawfully discriminated against by reason of her sex, it appears that Finch had no compunction about doing the same to male candidates for employment.
An email exchange between Finch and Kadlicek was produced in evidence by the Respondents. Before seeing the email exchange her evidence had been that she was not critical of men and did not believe the position of sales representative was a job better suited to women.
However the contents of the email disclose a different attitude. In the email she indicates clearly to Kadlicek that she preferred not to employ a male sales representative and openly states her preference for a female to be appointed. She also states an open preference to employ a young person rather than an older person.
When asked to explain these attitudes she said that she wanted a balance of males and females for her team. When asked directly whether her approach should be to obtain the best person for the job rather than to balance gender, she said that she did not want three males as sales representatives on her team. Although she did not say so, I assume that this was because males would be less likely to be skilled in makeup.
Zerafa gave evidence that he recalled at least two occasions in which she made disparaging comments about male employees. He said she said to him "I don't know why you men are selling cosmetics. It's more of a woman's field."
Kemp also gave evidence that she had commented to him in a field staff meeting that men were not suited to the cosmetics industry.
There was also substantial evidence in this case that Finch's own attitude to staff, particularly in relation to female staff, was significantly harsher than that of her superiors.
An email chain was produced into evidence in relation to an employee, Sarah Larchin, who had suffered from a car accident. The exchange reveals that Finch wished her to take the required time off as leave without pay and that Peter Kadlecik suggested she take those days from her annual leave as she had no sick leave entitlement. Finch's explanation of this email exchange is that she was trying to follow company policy. In fact the email chain discloses a much harsher attitude by Finch than her superiors required.
Similarly, an email exchange was produced between herself and Peter Kadlecik in respect of an employee who sought to have time off after her grandmother had died. The employee was Lisa Howson. The email exchange shows Finch as being reluctant to allow compassionate leave even after being told to do so several times by Kadlecik. I agree with the characterisation of this email chain by counsel for the Respondents as demonstrating Kadlecik trying to help her develop a compassionate approach to staff under her control, but that Finch was resistant to his efforts.

[58]

Although there was a great deal of evidence presented about whether the company had policies in respect of equal opportunity and pregnancy, and how accessible those policies were to staff, it was not clear from the particulars of complaint as to how I should use this evidence.
The absence of policies may of course indicate that a company does not take its responsibilities under anti discrimination law seriously. Any evidence that staff were prevented from accessing these policies might also lead to the same conclusion. However, the lack of policies does not prove the presence of discriminatory behaviour.
Counsel for the Complainant submitted that if I were to find that the policies were nonexistent, or that staff were prevented or dissuaded from relying on these policies, then this behaviour could be used to found an inference as to the mindset of the company towards the Complainant. In so doing she relied on a similar pattern of reasoning employed in Poniatowska v Hickinbotham (2009) FCA 680, a Federal Court case to which I will return when discussing her claim of victimization.
Another use of the evidence of policies was to reflect on the credibility of the witnesses overall. This comment applies to Finch's own evidence, as well as to the evidence of the Respondents, for if there indeed were policies in these areas, and Finch knew of them and had utilised them, this would reflect very badly on the credibility of the evidence to the contrary that she has given, and on her evidence overall.
Franklin said she herself had written the first version of the Heat handbook setting out the policies of the company. She said that this was done in about 2002 or 2003 and when it was finalised, a hard copy was given to each department head and one to each of the states and the handbook was also made available to all staff through the company computer on the company's intranet.
Although Gillian Franklin gave clear evidence of the existence of company policies from the inception of the company, and that policies were easily accessible to staff, some of the Respondents witnesses were not as certain.
Karen Campbell, who was employed as Territory manager and later State Manager in Western Australia from the time of inception of the company, recalled having received a package of documents in a manila folder very early on which she described as the company's "tools of trade".
She said thereafter when policies were changed or updated she would receive an email and memo about the change, and that when company policies were placed on the company's intranet the policies were easy to access.
Campbell gave evidence that she recalled having been given a manila folder of documents containing Heat's policies shortly after she commenced at the company. Her evidence was that she was told and understood that if she had any queries as to company policies then she was to contact the office manager at head office or the assistant to the sales team. However, she did not specifically identify having seen an antidiscrimination policy at that time. She said it was difficult to print out the policies on the internet, so when she needed one she would request a hard copy from head office.
Franklin gave evidence of the policies being bound in red and handed out at the company's conference in 2006 to all staff.
Campbell could not recall this, but vividly recalled being given a bound red copy at the company conference in 2007.
Vicki Malliaros said she knew Heat had a maternity leave policy in 2003 because she became pregnant in 2003 and accessed it on the L drive of the company computer to check what her entitlements were. She also said that from 2005 the maternity leave policy was on the company's intranet.
Kim Martin gave evidence that he received policy documents in hard copy, but discarded them and any updates as the same documents were accessible on the company's intranet.
Zefara saw the Heat handbook when he commenced his employment, and was aware that the company policies were on the intranet.
Petropoulos also recalled receiving emails sent to "Heat -All"' that is, to all employees of the company, when changes were made to heat policies, and she recalled having been emailed in that way regarding a change to maternity leave.
David Kemp gave evidence that he knew that the company's policies were on the company's L drive, and that from March 2005 when field staff were issued with computers, the policies were easily accessible via an icon on the company intranet.
All of the witnesses called by Finch who had previously been Heat employees denied having seen written company policies.
Duggan was sure that there were no company policies and procedures regarding bullying or discrimination. His offer of employment letter was shown to him. This letter referred to company policies and procedures. His evidence was that he did not remember seeing any policies and did not remember receiving a welcome pack containing those policies.
Harmer gave evidence that he had never known of or seen any formal policies regarding staff management or complaint handling and that there was no reference to those policies in the employment pack provided to him.
However, his certainty as to this issue was called into question by a copy of his letter of offer of employment, which referred to a Heat handbook as being attached. He said he had received a Heat employment pack, but that it contained only his letter of employment and a confidentiality agreement.
The reference to the Heat handbook in the letter to him, dated December 2003, appears to support the evidence of the Respondents' witnesses that written policies and procedures were available to staff. He could not explain this discrepancy.
Significantly, he accepted that even if the Heat handbook had not been enclosed with the letter of offer and he had wished to refer to the company's policies, he could have asked administration staff for a copy of it.
Reid supported Finch's evidence as to a lack of company policies, in that he could not recall any policies in relation to anti-discrimination and did not recall a staff handbook at all. He was shown what appeared to be a 2003 staff handbook but indicated that not only did he not recognise it but that it could not possibly have been the 2003 handbook because it contained reference to products, such as Alter 3, Red Earth and Bourgeois, which were not products handled by the company during 2003.
However, on being shown copies of letters of appointment he had himself sent to new employees in 2003 which purported to attach copies of the staff handbook, he did not dispute that such a document existed at the time; although he maintained that the document shown to him could not have been that handbook.
As to the issue of changing maternity leave policy he agreed that the policy was changed and that policies were updated from time to time so that the company could remain competitive and affordable. He said the discussions about the change to maternity leave occurred whilst he was working at the company but he did not know when they were implemented and agreed that they may have been implemented as late as February of 2008.
He recalled The Heat Group having engaged consultants to review all of its policies in 2004 but could recall little of the details of that review.
Thus although there was general agreement between the Respondents witnesses that a Heat handbook containing the company's policies did exist and that staff were made aware of it, there are some inconsistencies as to what it contained, whether it was available in hard copy or via computer to all staff, and the ease of accessing it.
The differences in the accounts of staff as to the presence of policies may possibly be explained by the evidence of Katrina Lawrence, personal assistant to Gillian Franklin, who held principal responsibility for placing policies on the company's L drive, and on the intranet .
She gave evidence that she alone created and sent out letters of offer, from a template created by her and held in her personal computer drive.
She said she also created two sets of documents to give to new staff. The first, an introduction pack, contained several documents, but not the company's policies. It was sent out by her with each letter of offer.
The second, the welcome pack, contained printouts of all the company's policies. It was presented to staff on arrival at the company.
Katrina Lawrence gave evidence that originally the company's policies were placed on the company's L drive on the computer. These were easily accessible to head office staff who worked with computers, but not automatically available to field staff until field staff were issued with computers in 2005.
However, Lawrence said she thought field staff did access the L drive. She said they must have because the L drive contained forms they would need, such as sick leave and annual leave forms, and it was also where at the request of field staff she had placed photos from company conferences. It was also where product presentations were stored. She did however concede that leave forms were available in hard copy, and she had no way of being sure that all staff accessed the L drive.
She gave evidence that there was a staff handbook prepared in 2003 and that not all new employees were given a hard copy but there were some accessible in the office and it was available on all employees' computers. She prepared all of the letters of offer to members of staff and it was her evidence that everyone should have been aware of the existence of the policies in the handbook because they were referred to in that letter.
Her evidence was that the intranet was established in March 2005 and there was a company presentation at that time to all staff explaining the intranet which identified for staff how to access company policies and job descriptions.
I think it likely that Reid, Harmer, Duggan and Karolak gave truthful evidence on this issue. It may be that with their letters of offer they received only the introduction pack, not containing the company's policies, and that for various reasons they failed to be provided with, or have forgotten the existence of the policies contained in the welcome pack.
However, there was clear evidence that Finch herself did know of the existence of these policies, having explained them to at least two staff members.
Helen Petropoulos described how when she was first employed Finch, as her immediate superior, went through the Company's policies with her. Her description was graphic. She said Finch had a small office with a desk and a round table near it. She said she and Finch sat at the round table and Finch showed her a red folder containing the company's policies. She said Finch flipped through the folder, showing her various headings, and telling her that id she needed to see the policies again or have them explained in more detail, she should go and see Finch about them, as the folder was kept by Finch in her office.
Aguado gave similar evidence of having been shown a red folder by Finch when she commenced working at the company. She said Finch said to her at the time that the folder contained all she needed to know about the company's policies, and Aguado could access it at any time by seeing Finch.
Aguado gave evidence that Finch drew her attention to various policies in relation to not only maternity leave but also bullying and harassment and annual leave and that all those policies were kept in a red folder in Finch's office. She said that Finch told her that the policies would be there in her office if Aguado ever needed to review them. Aguado further said that whenever the policies changed she received an email to signal the change from Gillian Franklin.
Lawrence said she was contacted by Finch some time in 2005 for a copy of the staff handbook. Her evidence was that she would have responded by printing out a copy of the handbook and sending it to her in the mail and also placing the most recent copy of the handbook in her in-tray in the reception area at head office.
She denies having told Finch at any time that the company's policies were not available to her. She said she was accustomed to answering staff queries about the company's policies, as it was part of her designated role.
Finch herself has exhibited one email she sent to Lawrence on 2 October 2006 in which she requests her to print out the maternity section of the company's policies.
It is clear from all of this evidence that Finch's assertion that at no time during her employment did the company have policies relating to equal opportunity and maternity leave and that no time were any of the company's policies provided to her must be rejected. I also reject her evidence that Lawrence failed to provide the excerpt of the policy which she requested in 2006.
This finding reflects adversely on the credit of Finch in giving evidence, not only as to this issue, but as to the allegations which she makes generally in this case.

[60]

The first major aspect of discrimination relied on by Finch is that in the period 2002 - 2005 while she worked as a Territory Manager, and in the period 2005 to 2006 whilst she worked as a State Manager, she was repeatedly requested and directed to perform duties that were outside the scope of her role . She says that she was asked to carry out these functions because she was female.
In her particulars of claim she identifies these additional functions relating to the period 2002 to 2005 as follows:
1. Managing territories outside her designated territory.
2. Assisting in the induction of new employees by providing support and training on the road.
3. Providing computer systems training in the Goldmine system to all new employees.
4. Managing clients that were not within her designated territory.
5. Responsibility for conducting make-up sessions outside of working hours. For instance, for external customers, and staff of pharmacies.
She says that because she was required to work these additional tasks she worked an average 60 hours a week compared to 40 hours a week worked by her male counterparts.
The further tasks she identifies required of her in the period 2005 to 2006 are:
1. Assisting in the induction of new employees by providing support and training on the road.
2. Providing computer systems training in the Goldmine system to all new employees.
3. Undertaking corporate presentations.
4. Taking responsibility for the sales management of the Tasmanian territory.
5. Management of sales employees' accounts for which Kadlecik was responsible.
She says that these further additional tasks which she identified resulted in her being required to work on average longer hours as a State Manager than her male counterparts.
Her position description was produced in evidence, although she denied having seen it. I accept the evidence of the Respondents' witnesses that the position description was that which applied to Territory Managers. The position description clearly contemplated very broad duties such as "optimise opportunities" and "prospect and secure new business".
Finch was asked questions about the tasks identified on the position description. Her position was that unless a particular task was in her position description it was not part of her job. She denied any suggestion the position description was broad enough to cover the functions which she had described as having been assigned to her. She denied specifically that it was part of her position to support and help her colleagues or that teamwork was part of her position description, answering that it depended what one meant by "team".
There was emphatic evidence from other employees of the company that as State Managers they were required to take on extra duties.
White said that although Jo-Anne being based in Melbourne would have done more to assist the induction of new employees than other State Managers, she was not the only employee to assist with induction in this way and that her duties in this respect did not happen often enough for them to impact on her sales results or significantly affect her workload.
Finch complained about being asked to conduct makeup sessions. However I accept that all territory managers were responsible to attend makeup sessions, whether to apply makeup, or if they had no skills in this area, to take on other roles at the event. Zerafa gave this evidence. He agreed that Finch did makeup for him at such functions and that he could have organised a makeup artist instead, but said she requested to be able to come to the function to do the make up.
Finch particularly complained of Kemp requiring her to conduct makeup sessions for him. He said he would sometimes ask Finch, and other times Margaret Fisher, a specialist makeup artist, when she was available. He said in organising functions all staff would perform those functions they were most suited to, and as he had no makeup skills, he had made this request.
So did Karen Campbell, who like Finch had worked as both a territory manager and State Manager, and gave several examples of almost identical functions performed by her in that role. Karen Campbell said that both Territory Managers and State Managers might sometimes be involved in conducting make-up sessions out of hours.
White said that Finch's involvement in the TMS - territory management system, was exactly the same for all staff, as the company needed to get an overall view of what was happening in each territory. He said he did not just focus on her, but on everyone.
Finch particularly complained of having to manage the Tasmanian territory whilst she was State Manager. However, it appeared from Peter Kadlecik that the duties were not onerous, as the state was run through a private contractor.
Zerafa, who took over from her as Victorian State Manager , gave evidence that he now performs essentially the same functions for Tasmania as were previously performed by Finch.- training staff, keeping staff informed, telephoning every week, and giving general guidance. Finch claims that Zerafa's description of his present role shows that he now has a lesser role than she was given in relation to Tasmania. If there were differences, in my view they were inconsequential.
David Zerafa and Kim Martin also said they regularly did corporate presentations. They both said that as Territory Managers they took on a role of training new staff.
Karen Campbell also gave evidence that she trained new staff in Goldmine as part of her role as State Manager. She said that in fact she believed that State Managers outside Victoria and New South Wales ended up doing more work than the Victorian and New South Wales counterparts because they did not have easy access to head office staff and resources for extra support.
David Kemp said that as a Territory Manager he conducted VIP nights and sometimes took head office staff on the road with him. He also said he was asked to take over territories outside his own when other territory managers were on leave. He said it made sense for all staff to perform these extra tasks for the benefit of the company generally.
The common theme of all this evidence that these tasks were performed in order to promote teamwork, and would ultimately increase the sales of all.
David Reid volunteered that "certain key people" were asked to cover accounts outside their normal territory and to do things not necessarily within the scope of their normal functions.
Although his evidence was that these duties were extra to their normal role, he said that those who were asked to take on those extra responsibilities would be expected to do so for the greater benefit of the company. He was adamant that both males and females were asked from time to time to take on extra functions. He did not suggest in any way that the allocation of functions or extra duties was made on the basis of sex.
Duggan agreed that he as a State Manager would often work between 50 and 60 hours a week. There was nothing in his evidence which suggested that long hours or extra duties were not part of a State Manager's role in the company. He described having provided training and support to new staff, including taking them on the road and training them in the Goldmine system. He said that all State Managers were required to provide training and support. There was nothing in his evidence to suggest that the fact that Finch had to do so was unusual or was a result of her sex.
The company's position was that it treated Finch in this respect in exactly the same was as males employed by the company and to the extent that she had any extra functions it was a result of the fact that she was based in Victoria where the head office was based and her location and skills, such as in the operation of the Goldmine system, made her more valuable to the company and therefore she was relied upon to assist in some particular areas.
The company's evidence was that the extra functions were called upon only occasionally, and that in performing those functions, such as computer training, she was demonstrating her value to the company and maximising her opportunity for future promotion within the company.
In my view there is no evidence at all linking the job functions required of Jo-Anne Finch while she was Territory Manager or State Manager to any unlawful discrimination.
Her evidence was most unpersuasive. In her witness statement she said she "could not recall" other of her counterparts carrying out extra functions. When the overwhelming evidence of other employees which I have described above was put to her in cross-examination she responded "I don't know what other people do, particularly".
It seems clear to me that Finch had no idea of the functions required of other Territory Managers and has had no reason to conclude that her long working week was as a result of her sex. My impression from the evidence was that she worked hard because she was very proud of her position and wished to achieve the maximum sales figures. This she did, winning company rewards along the way and being paid a substantial commission.
Although she says she lost money because of the extra work, other Territory Managers gave evidence that they were never told they had to work a set number of hours and that the main aim was to work as hard as possible in order to achieve commission sales. Zerafa said that if these functions were performed, they would lead to greater sales by everyone and thus to more commissions for the State Manager, not less.
Finch denied that she was competitive with others but agreed that she was competitive with herself and agreed that she did not know what all of the other Territory Manager's responsibilities were. She agreed that she had won awards because she was driven and that she was very good at achieving sales during that period.
Documents prepared by her at that time and particularly a presentation which she made on the occasion of her promotion to State Manager show that she referred to herself as a superstar and a team player. Even so, she denied on cross-examination that supporting the company generally or its staff was part of her position as a State Manager.
This allegation of discrimination arising out of her being forced to take on extra duties not allocated to males is the first of the series of allegations which I will deal with in these reasons where no nexus has been established between the discriminatory act and the attribute relied on.
Here, as in the subsequent examples to which I will refer, even if the Complainants case is taken at its highest, there is no evidence at all that what she regards as unfair treatment is causally linked with any attribute.
I will deal with this issue in more detail after outlining the evidence about each of the matters on which she relies. At this stage I content myself with citing with approval the observations of two extremely experienced members of this Tribunal which encapsulate the difficulties facing a successful outcome for the Complainant in this case.
Firstly, Senior Member Megay in Dickie v State of Victoria (2009) VCAT 713;

[65]

A particular aspect relied upon by Finch to show that she was required to perform extra functions was the fact that she was asked to provide computer training to new staff. The company used a computer system between 2002 and 2005 which was called Goldmine. The evidence was that Finch became very proficient in this system and that by reason of her proficiency she was asked to train new staff and generally field enquiries from staff when they had difficulties with the system.
The conflict in evidence between Finch and the Respondents' witnesses centred around the extent to which Finch was asked to take on this role and the extent to which the time spent training staff detracted from the time available to her to work on her own accounts and thereby maximise commissions. Finch said that she did the original training for a full day with each new member of staff. The training was conducted at the Victorian head office and then members of staff would return to their own individual states and would ring her from time to time about queries thereafter.
The Respondents' witnesses agreed that she did undertake this training, but said that it was not as onerous as she had suggested. In fact, the Respondents produced in evidence an email from her in which she had queried whether she was at that time still the Goldmine trainer.
Several of the Respondents' witnesses who were based at the company's head office in Melbourne denied seeing her spend a full day in Goldmine training. Kadlecik said he would have made sure this was avoided, as it would mean she would lose valuable time on the road.
There was conflicting evidence from the Respondents as to how much time goldmine training would take. The Complainant relied on the evidence of Zerafa who agreed that when he was trained by Finch, his initial training took half a day and that it was followed by another full day's induction. The implication was that Finch had trained him for a full day, as well as the initial half a day. However, he gave evidence that the full day included all aspects of the company induction, not just Goldmine.
David Reid, who was her immediate superior from 2003 to 2005, does not mention the Goldmine training as being an example of an extra imposition on her. Karen Campbell and Kim Martin gave evidence that they also performed basic goldmine training for new recruits in their state.
Duggan recalled that Finch had questioned changes to the Goldmine system, and he described Kadlecik's response to Finch as being one of "bullying and intimidation".
His evidence was that he and Finch were not happy with the changes to the Goldmine system, but there was nothing in what he said to indicate that he thought Finch was unfairly targeted by being asked to undertake Goldmine training, or that this was a ground of sex discrimination.
To the contrary, his evidence was that Finch was very proud of the Goldmine system and even passionate about it and that she enjoyed sharing her knowledge of Goldmine with other staff.
Franklin also gave evidence that she had observed that Finch enjoyed working with Goldmine software and that Finch often said to her how important it was that she was involved in the training as she knew the software best.
I find that there is no evidence of unlawful discrimination against Finch by reason of her being asked to train staff on Goldmine.

[66]

In Victoria up until 2005 there were four territories. They were the Western, South-eastern ,Central and Northern regions. Finch focuses on a particular decision made by Peter Kadlecik in respect of the Southern region in September 2003.
That region was held for a significant amount of time by a male, Brent Moulton. He left the company to take over the Chic role. Whilst he was absent from the territory Kadlecik divided the territory between the remaining territory representatives. Finch was given the Gippsland section of the Southern territory. Moulton then returned to the company for a short time and then left for good.
When Moulton left the company for the second time the question arose again as to the assignment of his territory. Finch said that she wished to take over that territory because she had established contacts in Gippsland during the time she had managed it. She said that Kadlecik refused to assign the territory to her. She said that he did this because she was a female.
Finch says that earlier in her employment Peter Kadlecik had required that she move into three different territories in six months. She said this was very difficult for her because she would promote the company's products and establish contacts in an area and then not have the benefit of that work because the area would be given to someone else. She said that males were not required to move territories as she was.
The Respondents' witnesses contradicted almost all of the facts put forward by Finch in relation to this incident. Kadlecik said he recalled moving Finch only once, and that was the incident she relates here. He said Mounter had held the Gippsland territory for several years before moving, and was away only a month on a company promotion before returning.
Kadlecik said that Moulton was in a completely different situation than Finch. When he had left a territory and then been allowed to return, he had been in the same territory for a very long time and when he returned after a short break the situation effectively reverted to normal in that he took over the whole of the territory after an absence of only a month. Kadlecik's evidence was that Moulton had changed territories only this once, and not on several previous occasions.
Kadlecik said that he turned down Finch's request that the Gippsland territory be reassigned to her as he wanted to assign the entire territory to a new territory manager.
An obvious difficulty with Finch's suggestion that the allocation of the Gippsland territory was gender based is the fact that Mr Kadlecik actually assigned the whole of the territory containing Gippsland to a female, Maree Saggers.
When I questioned Ms Finch as to how this could constitute discrimination on the grounds of gender, she explained that it was her understanding that Mr Moulton had in the past left a territory on several occasions and then been allowed to return to it. She asserted that Mr Kadlecik had favoured males by allowing males to return to a past territory and yet had refused to allow her as a female to return to a past territory.
I take it that Mounter is put forward as the appropriate comparator when assessing the discriminatory activity alleged. However, there were many respects in which Mounter's situation was completely different to that of Finch.
Finch asserts that she was working the Gippsland territory for ten months - although her evidence on this issue was inconsistent and vague; she saying also that it was six months- I accept that Mounter left the territory for only a month. He had previously held the territory for several years.
Kadlecik gave evidence that he did not want to split up the territory but wished to allocate the entire territory as it was not in the best interests of the company to extract out Gippsland from the Southern territory. His evidence was that Finch wished to relinquish other geographical areas which were not as lucrative so that she could maximise her earnings from a lucrative territory. He also said he believed it was in the best interests of the company to give Maree Saggers the opportunity to work the entire territory.
His evidence on this issue made sense and I accept it.
Finch's evidence before me is that what she wanted was fairness. She said it would not have affected Maree but it affected her because she had been moved three times and worked hard in the territory but that Peter Kadlecik did not care about her hard work.
It was suggested to Finch that what she really wanted was special treatment and that she wanted to get rid of the Echuca and Shepparton areas and obtain the Gippsland area.
Reid, her immediate superior at the time, recalled that a decision was made to bring someone else in instead and Finch discussed that issue with himself and Peter Kadlecik.
He recalled that Kadlecik felt that she was being disrespectful in challenging his decision to allocate the territory to someone else. He recalled she was unhappy because she had had the territory previously and was "chasing remuneration" and felt disadvantaged as a result.
His evidence conflicted with that of the Respondents' witnesses only in that he said the Gippsland territory, being a country run, was not automatically linked to any part of the city territory.
However, he agreed that whilst she was working for the company, in allocating a territory the company would take into account the locality and the best interests of the company, but that allocation was never made on the basis of sex.
In my view the suggestion that the allocation of the territory to Maree Saggers rather than Jo-Anne Finch was an example of sex discrimination is not made out.
The evidence Finch gave on this issue was confused and inconsistent. Her allegations of sex discrimination are not borne out by the emails which she sent at the time. In particular the email JF113 reveals that her reason for wanting Gippsland was as a reward to make her happy because of her hard work in the past and her perception that she deserved special treatment.
In keeping with the way in which she conducted her case generally, this ground of discrimination was presented as an example of sex discrimination when it was clearly a management decision made on reasonable grounds with no arguable flavour of discrimination.

[68]

Jo-Anne Finch alleges that she was falsely accused of stealing Myer vouchers in 2003 and that the accusation was made against her as a female and not made against males who would just as logically have been suspected. This accusation was emphatically made, but it became evident under cross-examination that there was no substance to it at all.
In the particulars of claim and in her first witness statement, Finch asserted that Peter Kadlecik had falsely accused her of stealing the Myer vouchers. It became clear on cross-examination that her allegation was that a female member of the office staff, Vicky Malliaros, had made the accusation.
Malliaros denied having done so. She said that she recalled distributing the Myer vouchers to each Territory Manager in sealed envelopes and putting those envelopes in each of the Territory Manager's trays. She recalled that Finch was to receive two vouchers, valued at $200.
She said that Finch later contacted her asking where the vouchers were and she said that she had put them in her in tray.
After making some further enquiries Malliaros located the vouchers. Her evidence was that Kadlecik was not involved in the issue of the missing vouchers at all, although when she finally told him the vouchers had been found he asked her to apologise for Finch for the mix-up and loss of the vouchers.
She said that she did so. She said that she never suggested at any time that Finch had stolen the vouchers, either to her or to any other member of staff.
When confronted with Malliaros evidence, Finch completely retreated from the accusation that she'd been accused of stealing the vouchers. She said that she didn't recall the word "steal" being used but that Malliaros had made "repetitive phone calls to me".
Peter Kadlecik's evidence was that he had not spoken to her at all in regard to the Myer vouchers. I accept that if he did so, he did not make any accusation against her of theft.
In my view the incident was nothing but an innocent case of the vouchers having been mislaid and then found in a few days and was not an incident of discrimination against the Complainant on any ground, let alone on the ground of sex. I further find that the incident was nothing to do with Kadlecik.
I note that shortly after this incident is said to have taken place, Ms Finch was awarded Territory Manager of the quarter and continued to receive awards after that time.
When this was put to her in cross-examination Finch refused to accept that she received awards, saying that she had simply won competitions.
This was typical of the combative nature of Finch's responses. The flavour of her evidence about this issue, as with much else of the evidence on cross-examination was that she had presumed discrimination where no grounds for it existed and where she could point to no evidence of it having occurred.

[70]

Finch claims that during the company's sales conference on 3 August 2005 she was falsely accused of cheating. She says that this accusation was made because she was female and was an example of the way in which she as a female was treated by Peter Kadlecik and John Simcocks.
On each day of the conference the participants were required to complete a challenge. The participants were divided into teams in order to do so. Points were given each day for the completion of the challenge and prizes were handed out to the successful teams.
Finch led one of the teams and the other State Managers led other teams. The challenges were to be done over a set one hour period and the subject matter of the challenge was handed out shortly before the one hour commenced. Finch's group had won the challenge on the first day but had been unsuccessful on the second day. The third challenge was to have comprised the topic "A day in the life of a Territory Manager". It was to be presented on 4 August 2005.
On the night of 3 August 2005 Finch and members of her group were found by Peter Kadlecik and John Simcocks working together. Finch was typing into her computer.
Kadlecik and Simcocks said that on receiving complaints from Kim Martin and Karen Campbell about the behaviour of Finch's group, they formed the view that Finch's group were inappropriately working on the project to be handed out the next day. Both Campbell and Martin gave persuasive evidence that they became suspicious that Finch and her group were working on the next day's project, and both separately approached Kadlecik to complain.
Kadlecik's evidence was that he had accidentally revealed to Michelle Whaley, one of Finch's team members, what the subject matter of the challenge next day would be - that is, that it would be to describe a day in the life of a Territory Manager, and that when the complaints were made to him by Campbell and Martin he deduced that Whaley may have passed on this information to Finch.
Thus Kadlecik and Simcocks challenged Finch and her team, asking them to reveal what they were doing.
Finch maintained in her evidence that she was not cheating and she and her group members did not know the subject matter in advance. She said that instead she was working on a special project. She said she freely showed the project to Kadlecik and Simcocks.
She said that the way in which she was spoken to by Kadlecik and Simcocks distressed her greatly. She believed they would not have spoken to her in that way had she been a man.
Finch's evidence about the facts surrounding this incident was inconsistent. In her first witness statement at paragraph 36 she refers to having been working on the "next day's project". In her second statement at paragraph 9 she said she was not working on the next day's project at all, but on something completely unrelated to it.
In her evidence before me she said that she wasn't working on the project but was adding something to it which was her own invention designed to enhance it. She said it was an idea that she had about putting everyone's name on Olympic rings to show that everyone was the winner.
Finch said that she had made a contemporaneous diary note of this incident. However, when this note was examined, it showed she had identified Michelle Whaley as present at the time of this incident. This contrasted with Finch's evidence before this Tribunal that Whaley was not present at the relevant time. Her presence was an important link. As I have previously noted, Whaley was the member of the team to whom Kadlecik said that he had accidentally disclosed the content of the next day's challenge.
Finch gave no credible explanation of the discrepancy between her evidence given to the Tribunal and the contents of her contemporaneous note.
Finch produced in evidence a slide show document which she claimed was the presentation that she was working on at the conference when she was challenged by Kadlecik. This document is Jo-Anne Finch-39 to her reply statement. She said that because of the trauma of being falsely accused of cheating, she and her team could not bring themselves to perform it the next day, but that she subsequently asked and was given permission to show the presentation on the last day of the conference.
Bridget Lorenc was one of the members of Finch's team. She gave evidence which related to this "cheating" allegation. She said that she could remember her team working on one of the projects that the team was allowed to work on and that she could recall either Kadlecik or Simcocks asking what project the team was working on. She said this was done in an "abrupt" manner. She thought all the members of Finch's team were present on that occasion.
However, she was not clear about some aspects of this incident. For instance, she thought it took place in the afternoon, whereas it is clear from all the other evidence that the incident occurred at night.
Her evidence was that the team were definitely not cheating on this occasion, but were working on a project that they were allowed to do.
She said that she could recall a heated conversation between Finch and Kadlecik and Simcocks, but could not remember any yelling or swearing at Jo-Anne during that time or otherwise during the conference.
Finch asserts that Lorenc was crying at the conference as a result of being falsely accused of cheating. Lorenc's evidence was that she accepted the fact that the group had done the wrong thing by cheating during the "pillow" incident.
She said that she was concerned about that incident because she had only just started at Heat, and was worried that her reputation may have been lowered because the group had been caught out in cheating in the pillow incident. She was distressed because of that incident, not the "cheating" incident I am considering here.
Simcocks and Kadlecik gave quite a different account to Finch of the confrontation with Finch on the night of 3 August 2005
I accept that Simcocks and Kadlecik genuinely believed that they should investigate what Finch's team were doing, because of the complaints they had received. I accept that given this belief, it was reasonable for them to intervene as they did. I accept their evidence that the intervention did not take place in a belligerent manner as Finch describes it.
But even had I been persuaded that the incident took place as Finch described it, I am unable to see any evidence in this incident of unlawful discrimination. Kadlecik's evidence was that he would have acted the same way had Finch been male or female. I accept this evidence.

[74]

This allegation is supported in Finch's witness statement by a description of two separate series of events.
The first was that Martin had been given 250 Covergirl Gift packs for him to distribute free of charge to his Queensland customers. The implication was that such generosity would translate into sales and therefore increase Martin's commissions.
When questioned about her knowledge of the exact circumstances surrounding the provision of the gift packs to Martin, it was clear that Finch had little knowledge of those circumstances.
The second example of favouritism directed towards Martin was said to be the involvement of Martin in a promotion to the Foodworks chain in Queensland. The head office of Foodworks is in Victoria. Finch complains that Martin had been allowed to control this campaign in breach of what she asserted was company protocol that contact with a department store must be initiated through the State Manager in the state in which the store has its head office.
Once again, she appeared to have little knowledge of the circumstances surrounding the Foodworks promotion.
The only one of the witnesses called by Finch who gave evidence about the circumstances of issue of the gift packs to Martin was Patrick Duggan. However in doing so he agreed that everything he knew about this issue had been told to him by Jo-Anne Finch. He was not aware as to who had made the decision that the packs be issued to Kim Martin.
Although in his witness statement he suggested female staff were upset because gift packs were not issued to them, on cross-examination he confirmed that he had no personal knowledge of whether female staff were upset or not as the only information he had about this assertion came from Finch.
When it was suggested to him that it was Brandy Paris rather than Peter Kadlecik who made the decision to issue the gift packs and the decision had nothing to do with gender but was a decision made on the basis of location and in support of the company's "Hero" program, he said that he was not aware of what criteria were used when the gift packs were issued.
The Queensland State Manager who was said to have been the beneficiary of this largesse, Kim Martin, explained the circumstances surrounding both of these promotions.
Martin gave evidence was that he had been trying to establish the Cover Girl brand with a pharmacy group in Queensland Healthy Pharmacy group. He said that there had been a promotion in Sydney from which there were a lot of leftover Cover Girl bags. A Cover Girl bag was a big bag, also known as a "tote bag", with a picture of Jennifer Hawkins on it, and containing some Cover Girl products.
He said that usually leftover products such as this would be shipped back to the warehouse in Melbourne. However, in this case, Brandy Paris, in her role as Promotions and Events Manager for The Heat Group, had met with the Healthy Pharmacy group and offered the bags to the group to sell.
He said that this was a sensible suggestion as it would save on shipping as the bags could be shipped straight to Brisbane from Sydney. He said that he spoke to his contact with the pharmacy group and it was agreed that the pharmacy group would purchase the bags and this was what was done.
Martin denied that Peter Kadlecik had anything to do with the decision. He also denied that he was given any kind of advantage through the deal or that the arrangements were made for him as a male and would not have been available to a female State Manager in the same position as him.
In particular he said the tote bags proved very hard to sell. When they did sell, they took away from basic sales, as the bags contained products which competed with brands already on the shelves of those pharmacies. Thus, normal business was affected.
He said that at the most there were 100 bags in the promotion, and that assuming they all sold, the applicable sales would be $13 a bag, or $1300 in total, a tiny proportion of his annual sales budget.
Martin also gave evidence about the Foodworks program. Martin said he was approached by Steve Bren, the Foodworks Sales Manager, who was based in Brisbane. Bren expressed interest in being shown the company's products. Martin said he did a presentation for Bren, and asked Brandy Paris to assist, as the client was potentially very large, having 900 stores across Australia, and Paris was the company's Promotions and Events Manager.
He said Paris sent him one box of samples to assist the presentation, containing an assortment of the company's products. White conducted the presentation, and left the samples with Bren.
Following the presentation Bren agreed that The Heat Group could approach 200 Foodworks outlets to canvass sales, but in fact they were only able to sign up two or three stores.
Although Finch said the head office of Foodworks was in Melbourne, Martin's evidence was that Bren was based in Brisbane. He said there was no set rule as to who should contact a potential buyer and that in his view it was just a matter of what makes business sense. It appeared at the time that Foodworks had offices both at Victoria and Queensland and the buyer was in Queensland so there was no reason why Martin should not have made the contact rather than Finch.
Finch complained to Martin about him handling the promotion. Martin's perception at the time was that Finch was concerned that if the Foodworks group was won as a customer, then the whole of the group would be accredited to his account rather than hers. However, his evidence was that if Finch or any of her Victorian team members had opened up Foodworks accounts in Victoria then the commission for the new business would be allocated to them. Foodworks commissions would not be allocated to Martin unless they were commissions received from Queensland stores.
The attitude of the Complainant in seeking to put forward these instances as evidence of discrimination very worrying. She appeared to have no regard for ascertaining the true facts surrounding either transaction. She admitted she was not in a position to know the reasons why either decision had been made. There was no real challenge to the explanation outlined by Martin.
She also omitted the fact that if sales were made in her state as a result of the Foodworks campaign, they would have been attributed to her, not to Martin. She ignored the fact that no one in the company, male or female, apart from Martin received the gift packs. Yet even in cross-examination and in submissions she asserted these incidents were examples of sex discrimination directed at her by Peter Kadlecik.
But most damning is that whilst her first witness statement and her particulars of complaint assert that in both cases the decision to favour Martin was made by Peter Kadlecik, giving the impression that a male had refused to allocate the gift packs or Foodworks promotion to her as a female, the Respondent's evidence makes it clear that in both cases the decision was made by Brandy Paris, in her role as coordinator of the Hero Program, a marketing program aimed at targeting new business, and that Kadlecik had nothing at all to do with it.
Finch did not refer to the involvement of Brandy Paris when she described these events in her first witness statement. Clearly Finch must have known that the decision had been made by Paris, not Kadlecik, as in her reply witness statement filed with the Tribunal last December, Finch says this:

[78]

Perhaps the most startling allegation made by Finch in this proceeding is the allegation that Peter Kadlecik deliberately falsified the figures upon which commissions were paid in order to favour male Territory Managers and State Managers over females and particularly in order to discriminate against Finch on the grounds of her sex, and that this course of conduct was acquiesced in by the other Respondents and the company management.
Given the seriousness of this allegation, it is very worrying that so little evidence has been forward by Finch to substantiate it. In general her evidence about the falsification of figures seems to rely upon what she has been told by others who are not available to give evidence in the proceeding and what she has inferred.
She said that when she was appointed State Manager in 2005 she was given access to the figures for her state and could see from those figures that things were not quite right. She gave as examples territories 52 and 53 whose figures she thought were worse than they should be and territory 51 which was performing better than could possibly be the case. She said that previously she had thought that her figures as Territory Manager were not accurate but on seeing the State figures it seemed to her clear that the figures as a whole needed to be corrected.
She said spoke to Peter Kadlecik about this many times, asking if she could go over the figures with him, but that he put her off. Initially he said that he'd get back to her as he was busy. At the time she said she thought this response was legitimate. She then went to the IT Department of the company and particularly to Andre Lim and Christina Darcy and spoke to them about the figures but still did not receive a satisfactory response.
Finch said that many times she tried to verify the figures to show whether they were accurate. She was concerned about this because her figures did not seem to make sense. She said at the time she was winning awards and has been, for instance, first in creating new business and second in promotions. She had specifically raised these issues and she wanted her own figures to be correct and her budgets checked so that she could prove that the figures allocated to her were inaccurate.
The particular criticisms she had of the figures were explored in her analysis of a document prepared by White in preparation for his meeting with her on 19 September 2006 - the Brand Health Report. I will deal with these criticisms when discussing the meeting with White in detail.
The Respondents advanced several explanations as to why sales figures may appear inaccurate.
Firstly, the Respondents said that in some states different accounting treatment was given to sales to discount chains. Sometimes they were treated as small groceries and included in pharmacy and sometimes they were treated as falling under the acronym DDS, short for discount department stores such as K-Mart and Target.
Finch did not agree that this could be the case and could not understand why it would be so, because in her view the sales should always be treated as pharmacy and not grocery, and pharmacy was always separate from goods sold to discount department stores.
The Respondents also suggested that the figures of some sales representatives were skewed by the Covergirl budget. Finch said that she believed this would not have occurred. However, she made the comment that she did not control the budgets and that although she was given overall budget figures, she was never given a breakdown as to how those budgets were calculated.
White said the winning of competitions would not necessarily translate into sales, especially if they were for such things as window dressing, or new business, as new business was a very small proportion of a budget.
Finch said other sales representatives had also made email complaints about their own figures, and she produced some of those complaints in evidence.
David Zerafa was one of the staff who had sent such emails querying the accuracy of his sales figures. In one email he had complained of the figures having "serious flaws". However, he gave evidence that overall his view was that there were only "minor discrepancies" in the figures, and that when he raised an issue, it was always taken up by White or by the accounts staff, and resolved.
He said:

[81]

Franklin, Simcocks, Kadlecik and White gave credible and consistent explanations for each of the matters raised in the emails relied on by Finch to show the inaccuracy of the sales figures. All of the criticisms fell away with appropriate explanation.
White's evidence was that he would always respond to queries about the figures, but that there was usually a logical explanation for the apparent discrepancy. On some occasions sales staff had misunderstood figures. On other occasions they were seeking the benefit of sales which had been ordered but not yet been delivered.
Further, the evidence demonstrated that any such inaccuracies would apply across the board to all sales representatives, male or female. It was clear from the Respondents' evidence that all of the queries raised in the emails presented were aspects that would have applied to the figures of every Territory Manager and State Manager, male or female.
It was also clear from Finch's own evidence that the discrepancies which she pointed out would apply to everyone, and not just to her. Finch's evidence was that the budgets were "wrong for different people in different ways". She said that as all of the staff were assessed on their budgets it was unfair that inaccuracies were not removed immediately because the budgets would be seen by Gillian Franklin and other sales representatives.
I will return to more issues raised by Finch about the reliability of sales figures when discussing the meeting organised by White on 22 September in which he discussed with her his concern about her sales performance. As I will demonstrate, each of those issues was explained comprehensively by the respondent's witnesses and any discriminatory effect found to be illusory.
All of the Respondents' witnesses emphatically denied having falsified the figures in order to produce a worse result for Finch than for any other of the sales team. Even had they wished to do so, it seems clear that there was no capacity for gender manipulation of the figures in the way suggested by Finch. There was no evidence produced by Finch to support this assertion at all.
Several of the Respondent's witnesses, such as Martin, expressed surprise that Finch as an experienced operator would not have understood that the issues she raised were not errors at all, given the length of time she had been with the company.
She did not really seek to put forward a credible argument of sex discrimination in relation to the sales figures, and appeared to me to be just repeating her claims of discrimination in the figures as a mantra, without regard to her own evidence.

[83]

Finch met with Peter Kadlecik and John Simcocks on 16 June 2006. During the course of that meeting she was warned of matters relating to her performance. Finch says that the meeting took place as part of a process agreed upon between Kadlecik and Simcocks to "manage her out". She says that this process was undertaken because she was a female and had been complaining of discrimination and the company had determined for that reason to get rid of her.
The circumstances leading up to this meeting are crucial. The meeting took place on the same day that Patrick Duggan, State Manager for NSW, resigned, and in doing so told Simcocks that he should speak to Finch who would back up his complaints about Peter Kadlecik's management style. On that day Sarah Larchin also resigned. The meeting also took place only a few days after she had raised concerns about the allocation of gift packs to Martin.
Finch says that it is not a coincidence that all these events occurred close in time. She says I should infer that Franklin, Simcocks and Kadlecik had realised when she complained about the gift packs; had been referred to by Duggan; and had made prior complaints on her own behalf and on behalf of other females, that she was going to make trouble for the company by raising allegations of discrimination against females. Thus when the opportunity presented itself by the sudden resignation of Sarah Larchin, the Respondents organised the meeting with her on the same day in order to intimidate her into resigning from the company.
She says that this inference is strengthened by the fact that at the meeting she was given no chance to respond to the allegations made against her, as they were not adequately particularised. She asserts that no discussion took place about complaints by staff other than Sarah Larchin, and she knew that Larchin's complaints were unfounded. She says she was denied procedural fairness in being compelled to attend the meeting without sufficient information as to what was to be discussed at the meeting, or the detail of complaints made against her.
The Respondents say that the meeting took place because there had been a large number of complaints from various staff to management about Finch and that three people had resigned as a direct result of her treatment of them.
The question of when Kadlecik and Simcocks were told of these complaints and concerns is therefore important for Finch says that any such complaints were made after the warning was given. Thus the warning can be seen to not have been justified. Finch says the warning was given because of antagonism to her because she was female and had complained of discrimination, not because of receipt of any valid complaints about her performance.
There was evidence that Kadlecik and Simcocks met with field staff under Finch, after Kadlecik had been approached by David Zerafa and David Kemp requesting that such a meeting be organised. Simcocks, Kadlecik and Kemp all gave evidence that this meeting took place after Larchin had resigned, although no definite date was established.
Finch says that I should find that at the time she met with Kadlecik and Simcocks, the meeting had not taken place. She says that this means that Kadlecik and Simcocks could not have known of the concerns of field staff when they met with her, and thus their evidence that they discussed those concerns with her is incorrect, and her evidence that none of these matters were discussed is confirmed.
Finally, Finch says I should use this discrepancy between the dates as showing that, contrary to their evidence, the Respondents were continuing to gather evidence against Finch, and trying to coerce staff into complaining about her, even after the meeting had taken place.
I am not able to finally determine whether the meeting with field staff took place before or after the meeting with Finch. However, I find it established from the evidence of notes made by Kadlicek immediately after the meeting with Finch on 16 June, and the sworn evidence of Kadlecik and Simcocks, that the gist of the complaints from field staff and head office staff were known about by Kadlecik and Simcocks and were put to Finch during that meeting.
If the meeting with field staff took place after 16 June, I think it likely that the gravamen of the complaints was made known to Kadlecik and Simcocks before that time.

[85]

As I have said, the Respondents have produced minutes of the meeting of 16 June 2006. The minutes refer to a discussion having taken place about complaints about Finch from Kemp, Zerafa, Hall and Lorenc from the field team and Paris, Rosperich and Ridland from head office staff, as well as Larchin.
Finch denied that those minutes are an accurate record of what occurred and asserted that she was told only of complaints from Larchin.
A letter from the company to Finch dated 2 July, which was handed to Finch either on the date it bears or some time shortly after that date, also details complaints from Lorenc and Hall and other staff, as well as referring to Larchin.
Finch says this letter is also not an accurate account of what was discussed at the meeting.
She says that the way in which the 16 June meeting was called, and the letter of 2 July was handed to her, illustrates the intimidatory atmosphere under which she was required to work, and that the respondents made no genuine attempt to ascertain the truth of the allegations made against her.
She says that in order to shore up their position, the Respondents tried to coerce employees after the meeting to make complaints against her, or otherwise trawled the company for potentially damaging information they could use against her.
She suggests the meeting was triggered as a direct result of Patrick Duggan having the same day revealed to Simcocks that she was critical of Kadlicek. She says this can be seen by the fact that at the outset of the meeting Simcocks demanded that she tell him what she had been saying about Peter Kadlecik. When she said she hadn't said anything John then said "you're a liar".
Simcocks denies having made this comment, and indeed his evidence was that he did not know that Duggan had resigned before he attended the meeting with Finch.
Finch recounts that at the meeting Peter Kadlecik then went on to say that Sarah Larkin had resigned because of her and that she was a bad manager and that if one more person resigned from the company then her role was on the line and her career would be over.
Her evidence was that at the meeting she tried to defend herself but Kadlicek and Simcocks became very angry and began shouting at her. She said the only allegations they made against her in the meeting were that she was too passionate and needed to tone it down and that her protestation that she had done nothing wrong was ignored.
Both Simcocks and Kadlecik gave credible evidence that the minutes were an accurate record of the matters discussed at the meeting. I accept their evidence that this is so.
When asked about various aspects of the minutes in cross-examination Finch agreed that she had made one of the comments recorded in the minutes . The minutes record that in response to a question from Kadlicek as to whether she could think of any areas in which she could improve, she had said that she needed time to think as nothing came to mind.
Finch agreed that this question had been asked and that she had responded in that way. Given the evidence of Simcocks and Kadlicek as to the range of issues and complaints discussed, and the contemporaneous record of the minutes and the letter of 2 July, I conclude that Finch was told of the full range of complaints received by the respondents at the 16 June meeting.
In her second witness statement Finch sets out extensive criticisms of the work capacity and veracity of each of the employees who are said to have complained about her. These criticisms were designed to demonstrate that those staff members were themselves falling below performance standards or otherwise unsuitable as employees.
Many of her criticisms appear to me to have been almost absurd - for instance, a suggestion that Brigid Lorenc was an unsuitable employee because she did not contribute to a Kris Kringle and that her failure to so contribute demonstrated her unwillingness to participate as a team member.
She agreed that there had been a dispute with Roser. She said in cross-examination that Roser had yelled at her and she had reported Roser to Kadlecik. She said she didn't know what Roser's difficulty was with her but that Roser had been yelling while they were both in the car. She denied that Roser's complaint was that she had not been properly supported in her position by Finch.
She was asked about a complaint by Renee Rosperich. She said that complaint was blown out of context. She was asked about a complaint by Brandy Paris and she said that that complaint was exaggerated. She was asked about the complaint from Kim Martin. She said he had nothing to complain about. She was asked about a complaint by Ridlands. She said she did not know whether a complaint had been made by that person.
She acknowledged having known that Brigid Lorenc had had a meeting with Simcocks and later resigned but did not accept that it was because of her. She acknowledged that Colleen Hall had resigned but did not accept that it was because of her.
She acknowledged that she had been told at some time that David Zerafa had complained about her but said that she did not accept that he had in fact complained. She acknowledged having been told that David Kemp had complained about her but did not accept the substance of that complaint.
When asked whether her case was that all these employees had got together to make unsubstantiated complaints Finch did not appear to me to give a direct answer. Instead she said that the reference by the Respondents to these complaints was part of the process of her being managed out.
However, the most important aspect of this evidence I have just detailed is that Finch agreed that apart from some discussion of these issues with Peter Kadlecik, none of the criticisms she makes in her reply statement of the staff members who had complained were issues that she had raised with either Gillian Franklin or John Simcocks prior to 16 June. Thus at the time of the performance counselling on 16 June 2006 those criticisms would not have been matters taken into account when the Respondents assessed the validity of the complaints made against her by those staff.
Finch's husband Ndiedge gave evidence of having telephoned John Simcocks and Gillian Franklin on the night of 16 June 2006. He said, having found Finch distressed at home, that he had first telephoned Simcocks and then Franklin to ascertain what had happened.
His evidence was that during the telephone conversation Simcocks admitted to him that he had "yelled" at Finch but said that he "couldn't control it". Simcocks said that he "took responsibility for the day's actions" .Ndiege was not satisfied with Simcocks' responses and so he called Gillian Franklin.
He said he was more satisfied with Franklin's response, as she told him that Finch was a very valued member of the company and was passionate about her role. He said Gillian suggested to him that this passion is what may have got her into trouble but that he did not understand her comment. His evidence was that Franklin appeared understanding and told him that she was going to address the issues and make sure they never happened again.
I presume this evidence was led to demonstrate that Simcocks and Franklin conceded to Ndiege that the meeting was unwarranted and the accusations made at the meeting were untrue, and further that those allegations were confined only to the resignation of Larchin and an allegation that Finch was too passionate.
However, Franklin's evidence was that during the telephone call with Ndiege, Franklin told him that she shared John Simcocks' and Peter Kadlecik's concerns about Finch and said that complaints had been made against Finch by head office staff. Her evidence was that she tried to explain to Ndiege the difference between passionate and aggressive behaviour in the workplace and suggested that he should assist Finch to learn more about managing people.
Although Ndiege denies any reference in the conversation to criticisms of Finch or the suggestions about management style, Franklin's evidence was persuasive and I accept it. I think it is likely that Ndiege is inaccurate in his recollection, and this inaccuracy is contributed to by his intense emotional involvement in the matters affecting his wife.
Franklin said that the phone call was lengthy and that she told Ndiege of the concern that had been expressed to her by Kadlecik and Simcocks regarding Jo-Anne's aggressiveness and competitiveness. She said that she asked him to let Finch know that the complaints had come not just from her sales team but from head office staff and that she was concerned that Finch was not hearing what was being said and was in denial about her management difficulties. However, she said that she assured Ndiege that she was keen to support Finch and would invest in training Finch on professional management skills.
She then offered to meet with Finch to discuss the matter further.
The evidence of John Simcocks was that when Ndiege rang him he was very angry and commenced to abuse him. Simcocks attempted to calm Ndiege down, but when that was unsuccessful, he suggested to him that he come into the office on Monday morning and Simcocks would sit down and talk to him about the matters which he had raised. He said that when he made that suggestion Ndiege had hung up on him.
Ndiege denied that he had been angry or abusive on the phone to Simcocks, but I find it likely that that is what occurred. Ndiege agreed that at the time of the call he was frustrated and angry and his witness statement is expressed in strong terms, detailing the injustices which he believed his wife had suffered.
In cross-examination Ndiege described the events prior to the telephone calls as being "watching two men emotionally butcher my wife".
My perception that it is likely that the conversation took place as Simcocks described it is reinforced by Nudge's admission in cross-examination that Simcocks did ask him to come in and speak to him in the office on Monday and that Ndiege refused to do so as he said that he was not an employee of the company and that if Simcocks couldn't explain to him over the telephone then he would make a complaint to the managing director of the company.
Finch did not meet with Franklin but sent her an email on 17 June 2006. Franklin tried to telephone Finch after receiving the email and then had a meeting with Simcocks and Kadlecik to discuss the situation. During that meeting her evidence was that she decided to try to find a course to help with management training for Finch and that she would spend the money on the course to give Finch the opportunity to improve. She said that she did this despite having serious misgivings about Finch's ability to improve as Finch was continuing to behave as if she bore no responsibility for the situation.
Franklin had a number of telephone calls with Finch over the next few days. Her evidence was that she wanted to make sure Finch knew that there was an open line of communication with her and wished to assure her that we were there to support her, although continuing to confirm that the action taken by Simcocks and Kadlecik was properly based.
The management training was paid for by the company and took place in August of 2006. This training was offered to no other State Manager and was specifically arranged in order to try to support Finch to develop a more acceptable management style.
Franklin's evidence was that throughout this period she treated Finch in exactly the same way as she would have treated any manager in the same circumstances, male or female, and that there had never been any complaint during that time or since that Finch had been differently treated because of her sex.
Finch says that Franklin did not adequately respond to the concerns in her email, and that this lack of response should be used to ground an inference that she did not take those concerns seriously, giving support to her accusation that the company in fact wished to manage her out of the company because of her complaints of discrimination.
Finch says it must have been apparent to Franklin when she received that email that Finch was making a complaint of sex discrimination, even if it was not couched in that way, as her complaints were predominantly about the actions of males within the company.
Franklin sent the email chain to Kadlecik, and in responding to it Kadlecik made some clearly derogatory references to Finch. He described her as vindictive, aggressive and greedy, and Finch says his treatment of the matters in the email showed his bias against her and hostility towards her.
She says Franklin should have treated her email as a request for an independent investigation of her claims of sex discrimination. She should not have given the matter over to Kadlecik and Simcocks to investigate, and the fact that she did reveals that those complaints were not taken seriously by Franklin, and the manner of her response was effectively to victimise her for making the complaint.
I accept the evidence of the respondents that the calling of the meeting on 16 June, the matters discussed at that meeting, and the later letter to Finch of 2 July 2006 all arose out of concern about Finch's management style as State Manager following the receipt of complaints from staff regarding intimidation, bullying, belittling of staff, failing to listen to staff and pressuring staff to increase their ratings of her on their staff appraisals.
It must be remembered that my task in looking at the events leading up to the performance counselling on 16 June 2006 is not primarily to consider whether the complaints made about Finch's performance were justified. My task is to ascertain whether or not the circumstances of that performance counselling revealed discrimination against Finch on the grounds of her sex.
Gillian Franklin and Peter Kadlecik and John Simcocks each gave credible and persuasive evidence of their concern about Finch's performance as a manager at the time of the performance counselling. Their evidence went further than that. They said that they at that time still regarded her as a valuable member of staff and that they wished the matters which they raised to be resolved. They gave evidence that at no time did they wish to manage her out or to procure her resignation.
I accept this evidence as truthful. It is supported by the tone of the email exchanges which took place between Finch and Franklin after 16 June. It is supported also by the events which occurred thereafter, in which Finch continued to be supported in her position as State Manager leading up to the meeting with White on 22 September 2006.
I do not accept that the evidence shows Franklin or any of the other respondents to have not taken Finch's concerns seriously, or that the manner of the respondents' response to Finch's concerns is suggestive of victimization.

[86]

White requested Finch to meet with him on 22 September 2006. Finch says that this meeting was either a further disciplinary meeting, or a meeting to explore the utilisation of the company's grievance procedure. She says that Whites conduct in calling this meeting, of not giving her proper warning about the matters to be discussed at this meeting, the inaccurate assertions made by him at the meeting about her performance and his hostile attitude to her at the meeting may all be used as evidence that the disciplinary process commenced against her was a sham. The meeting thus was further discrimination against her on the grounds of sex, and victimization of her in making her complaints of unfair treatment.
White gave evidence that he had originally organised the meeting with Finch at her request because she wished to discuss a concern she had about the breakup of Victorian territories. In particular, she had complained that Zerafa had obtained new business in a territory to which he had not been allocated. White had initially dismissed her concern, saying that Zerafa had been the only territory manager to obtain recent new business, but Finch had maintained that there needed to be clear rules on this issue, and so the meeting was arranged.
White said that by the time of the meeting, significant issues had appeared in relation to her sales figures, of such importance that the meeting was taken over to discuss them.
He also said that although he knew that Finch had been given a warning in June, management had deliberately not told him of the nature of the warning, as he and management wanted to make a fresh start with Finch.
In preparation for this meeting he printed out a Brand Health Report. This report relating only to pharmacies, not discount department stores, was a type of sales report that showed how many pharmacies have had an increase in sales of the particular brand and how many have had a decrease, as compared with the same time the previous year. The report is not a full analysis of the sales figures of any employee. In particular it does not look at how much sales have increased or decreased and does not compare sales results against budget for the individual or the state. It does not show sales figures, just trends.
White said that he was very concerned when he printed this report, as it showed that Finch's sales trends were overwhelmingly bad compared to equivalent figures from each other State Manager. Out of 13 pharmacies in her budget, only one was performing adequately. He said that he thought he needed to talk to Finch in order to devise a plan with her as to how those figures could be increased.
He said that he attempted to discuss his concerns with Finch, but she refused to acknowledge that the figures were correct. He said that at the meeting his impression was that Finch was "in denial". He said she told him that she could not get the June warning out of her mind and so could not do her job properly.
He said he told her to put it in the past and focus on this financial year.
Finch maintained in this hearing that the Brand Health report was inaccurate, and that the inaccuracies were examples of sex discrimination against her. It is therefore necessary to consider the inaccuracies on which she relied to see if they reveal evidence of sex discrimination.
The first reason she advanced was that David Kemp's pharmacies were assigned to her in the report. She explained the effect that this would have upon her sales performance.
She said that if a pharmacy was wrongly attached to a territory then that pharmacy would have a budget attached to it that shouldn't be there. She said there were two - but then changed her evidence to three - of Kemp's pharmacies assigned to her.
She agreed that the difference that this would make to her figures would depend upon what budget was assigned for those pharmacies, and she was not aware of what those budgets were. She guessed the budgets for each pharmacy may be as high as $60,000. However, whatever the figures were, she said that she would appear to be performing worse than she really was because of the impact of the extra budgets.
White said that he had not realised that the Kemp pharmacies were included in this report until it was pointed out by her at the meeting. He said he had previously decided to transfer two of her pharmacies to Kemps as they were both located in Gippsland, a long way from her territory and country run, and it did not make sense for her to go to Gippsland to service them when Kemp was already in that territory.
However, he said both of the Kemp pharmacies were very small. The deletion of these pharmacies would have had marginal impact upon her sales figures - Franklin and White both saying the two pharmacies named in Finch's witness statement had budgets of $1000 each per quarter, not the $60000 suggested by Finch.
A particular aspect of the falsification of figures on which Finch relies is the allegation that David Kemp's figures were artificially inflated overall. This allegation was made in the context of a performance review of David Kemp which is exhibit 15. That performance review showed that he had achieved an overall sales budget of 101%.
Finch said that it was impossible for Kemp to have achieved this result because within each budget an allocation for new business and expected promotional sellings were factored in both for the current year and with an expected increase on the previous year. She said that she knew that Kemp had not opened any new business within that year and that his promotional selling was the lowest of any territory representatives. Further, she knew that there were seven closed customer accounts which should have been allocated to his budget. These factors in combination could not possibly have achieved the result on his performance review.
White's evidence was that Kemp was able to achieve and rise above his targets even though he did not open new business as he was very good at looking after existing business. Given that existing business comprised 75% of the budget, White said Kemp could easily achieve over budget results by this means alone.
Secondly, Finch said that the figures were inaccurate in that there were closed accounts included in them.
When an account is closed head office has to remove the budgets which relate to that account. Finch said that this often was not done. She said that she had sent Adam White emails regarding this on numerous occasions and nothing was done about it.
White explained that closed accounts could not be removed from the budget as the company needed to know the whole picture for the previous year to calculate growth. From time to time accounts were closed and it took some time for the accounting system to be adjusted to reflect the closure.
There was no evidence at all that this procedure was applied in any different way to Finch's accounts than to accounts across the company.
The third reason that Finch gave for the figures being inaccurate was that she knew she had made new sales which had not been taken into account.
White explained that when new business was obtained, stands had to be built, installation arranged, and products ordered, and there would usually be 2 -3 months between the time of placing the order and the time the goods were invoiced. He explained that there may be new sales figures in the system but those figures were not updated until the goods were despatched. Further if a stock was pre-sold there was a delay between the time of taking of the order and the time of it being entered into the system because of the delay between the pre-selling and the despatch.
Finch said that the report showed Victoria still to be on budget, and therefore there was no reason to complain about her performance. White agreed that this was so, but said that this was a result of including the DDS figures as well as pharmacies in the final result. The DDS figures were not attributable to the efforts of field staff, as they were separately managed from head office by other staff. He said the real measure of Finch's performance was the pharmacy trends, not the DDS figures.
Finch pointed out that in the report another State Manager, Watt was on 492% of budget and that given that budgets are very hard to reach normally, it was her view that a 492% overrun budget would be impossible to achieve. She said this demonstrated the unreliability of the Brand Health Report overall.
White explained that such a result could occur if extra pharmacies were allocated after budgets had been set, and that is what had taken place. Although it was clear that Finch had no knowledge of the details surrounding Watt's budget, she disagreed that that could have happened.
I accept White's explanations of these apparent discrepancies. I accept his evidence that he did not accept that Finch's overall criticisms of these figures were accurate as he had the report checked by head office staff before his meeting with Finch and was confident they were correct.
It was notable that there was very little cross-examination of White on the alleged discrepancies in the Brand Health Report, and despite the extraordinary length of time devoted to this issue at the hearing, it was not even referred to in the final submissions of counsel for the Complainant.
I find that the claim that the figures contained in the Brand Health Report were falsified or inaccurate because of a gender bias against Finch is not made out, and further that in his dealings with Finch, White made appropriate efforts to ensure that the sales figures discussed with her were accurate and fairly reflected her performance.
As I have said, White's evidence was that in discussing those figures with her he simply wished to try to assist Finch to develop strategies to reverse the decline in sales demonstrated in the report. Finch instead focused on the warning which she had received on 16 June and which she described as unfair, and also on the fact that the report was inaccurate in that it included one extra pharmacy in her figures which should have been included in David Kemp's figures.
Finch alleges that White made "unsubstantiated and untrue allegations of poor performance" at the 22 September meeting. She also alleges that during the meeting she proved that the sales figures which were presented to her were wrong.
Neither of those allegations can be made out on the evidence presented in this case.
White also gives evidence of running two further sales reports after the September meeting with Finch, in October of 2006. He said those reports showed that Finch's figures were still poor. He described her figures as being "quite shocking" and gave evidence that he was very concerned about them. He said that it was for this reason that he drafted a warning letter to her about her sales performance. He described that warning letter as really a last resort because Finch's sales results were so bad that she needed to be made aware how serious the situation was.
White contrasted her low result with that of the other State Managers. Martin in Queensland had 18 pharmacies up and 1 down. Watt had 7 up and 5 down. Whaley had 7 up and 11 down, and Campbell in WA had 19 up and 6 down. Thus he said no other state had figures anywhere near as poor as those produced by Finch.
He said she did not discuss her complaints or issues about other staff in detail at this meeting, as he did not know of past issues, and did not want to go over them.
Significantly, White's evidence was that at the time of the 22 September meeting with Finch, he was aware of the explanations for these apparent differences, and that these issues would apply to all sales staff, male or female.
Finch says that at this meeting, she asked White about her entitlement to maternity leave. She says that when she did so, his response was "hostile and inappropriate". She relies on this reaction as a ground of pregnancy discrimination.
These words come from the description in the particulars of complaint, not from Finch's evidence. The only evidence she gave to support this allegation is contained in her first witness statement, where she says he responded "in a hostile and derogatory manner."
White denies making any hostile or derogatory remarks to Finch and I accept his evidence.

[87]

Scotti said that he organised a meeting with Finch at her home on 16 December 2006 because he needed to retrieve her company car and phone. He said he also wanted to talk to Finch, to see if the issues between her and the company could be resolved. He said that at that time the WorkCover claim had been rejected, and so Finch was under a legal obligation to return to work. However, he had received a medical certificate from her doctor which had said that Finch could not return to work until the issues between her and the company were resolved.
His aim was to try to resolve those issues so she could return to work.
He said he gave Finch the option of meeting with some other person than him, and Franklin had said she would be available for this purpose, or the items could be dropped off to another staff member, but the only person in the company Finch would meet with was him.
He said he also gave her the option of just giving him the items, but Finch said she was willing to meet with him to see if all outstanding issues could be resolved.
Finch says that Scotti's actions in arranging the meeting and the matters which he discussed with her at this meeting are evidence of discrimination and victimization. She says that Scotti insisted on meeting with her personally, when he knew she was ill, in an attempt to take advantage of her illness to persuade her to resign from the company, and to deliver the message that the company did not want her back because she had made complaints of discrimination against the company.
Finch's evidence was that the only reason she allowed Scotti to visit her home was to collect the company belongings, and that there was no advance suggestion that she should discuss settlement with him.
She did agree that she did discuss several matters when he arrived at the house. She said she told him she wanted to return to work, but not have contact with Kadlecik or White. She said she wanted an investigation into the warnings she had received and an apology. She said she also wanted a maternity leave payment from the company.
She said that Scotti told her she was not entitled to maternity leave payment under any circumstances, and the Gillian Franklin did not want her to return to work after she had "made complaints about her male management."
Finch says that these comments made by Scotti are evidence of the company's discrimination against her, and evidence of the company having victimised her because she made a complaint of gender discrimination.
She says Scotti would have known of her illness, as she had emailed him on 21 November 2006, telling him that she had only just been discharged from hospital and may be in and out of hospital again over the days following.
Her husband Ndiege gave evidence that he had been at the meeting on 16 December, and that he heard Scotti say that Gillian Franklin would not give Finch the Heat maternity payment and that Franklin did not want Finch to work there any more because she had made complaints. Neidge says:

[89]

Scotti denies having made those comments. He says he merely wished to have a without prejudice discussion with her, as at that time the company had received a medical report indicating that she could not return to work until her difficulties with Kadlecik and Simcocks had been resolved. He wanted to explore with her ways of resolving those problems to enable her return to work, or if that were not possible, try to reach a settlement of the WorkCover claim, which might entail her resignation from the company.
He said that everything he said at the meeting was put on a without prejudice basis. He said that he would not have attended the meeting, or spoken to her of settlement options, if he had thought she was too ill to participate, or she had expressed a wish not to see him.
Counsel for the Respondents submitted to me that everything said by Scotti at the meeting was inadmissible as it was part of a without prejudice discussion. Scotti said he had obtained a definition of the words "without prejudice" before the meeting started, and showed it to Finch, and ascertained that she did wish to discuss settlement of the claim with him on a without prejudice basis.
Finch agrees that she was shown the document, but maintains that she was not aware, even after Scotti had explained it to her, of what the term without prejudice meant.
I think the facts establish that the discussion between Scotti and Finch should be characterised as without prejudice so far as any WorkCover claim is concerned. I accept Scotti's evidence that his purpose in putting forward proposed options was to be able to make without prejudice offers to resolve the outstanding WorkCover dispute.
I do not think that the conversation can be characterised as without prejudice in relation to this anti discrimination proceeding. I accept Scotti's evidence that he did not know of the EOC complaint at the time of the meeting, and that Finch did not raise any claim of sex discrimination, or discrimination on the grounds of any other attribute with him at the meeting.
If any conduct had occurred at the meeting that could be described as discrimination or victimization, I do not regard it as being protected by the characterization of being made on a without prejudice basis.
However, I do not find the meeting, or anything said by Scotti at the meeting, to be evidence of impairment discrimination or victimization.
I do not accept the evidence of Finch and Ndiege that Scotti threatened that Franklin did not want her to return to work because she had made complaints. I accept Scotti's evidence that he did not make this threat, and I accept Franklin's evidence that she was not aware of any antidiscrimination claim by Finch at that time.
I do not accept Finch's assertion that Scotti insisted on the meeting knowing her to be ill and pregnant in an attempt to take advantage of her vulnerability, or to pressure her into resigning from the company, although I accept that resignation was an option raised at the meeting.
It seems to me that the meeting was a sensible attempt to resolve the issues as Scotti saw them at the time without more expense and trauma to the parties. There is no reason why he should not have attempted to do so, and as events have turned out, it is a great pity for all parties that his attempts were unsuccessful.

[92]

Counsel for the Complainant submitted that the principal complaint of pregnancy discrimination was the allegation that on learning that she was pregnant, White took over her role, and that the most significant aspect of this behaviour was his action in employing Anita Aguado without proper reference to her, and in authorising leave for her, again without reference to Finch, and for a period that was inconvenient to the operation of the company.
She makes a similar complaint about Simcocks role in the employment of David Zerafa.
Zerafa's evidence was that he had met Simcock socially and Simcock had told him that The Heat Group were looking for staff, and gave him the phone number, but that was the extent of Simcocks involvement.
Zerafa said he telephoned the company, spoke to Finch, was interviewed by Finch, and then had a follow up interview with White. He said Finch offered him the job by telephone after the interview. He could not recall if Simcocks had made the appointment. He said he was not a close friend of Simcocks, just an acquaintance.
Aguado's evidence was that Finch was heavily involved in the selection process. She said that she had first contacted Finch by telephone to enquire about the job, and at Finch's request had then emailed her resume directly to Finch. She then had a telephone interview with Finch, and a follow up face to face interview with Finch alone, before then being interviewed by White.
She said Finch told her at the second interview that she was happy to employ her but that she would have to have an interview with someone from head office before an offer could be made. Subsequently that interview took place with Adam White.
Finch suggests that White approved Aguado's leave without checking with Finch first. Aguado's evidence was that Finch knew about the leave required and in fact assisted her in applying for the leave. She recalled sitting with Finch at Finch's desk, and Finch filling out her leave application electronically and submitting it on Finch's own computer to the Finance department for her.
Finch gave evidence that she did not approve the leave and only found out about it once it had been approved. She said she would never have approved leave in January, as January is a busy month. She points to her email JF 118 to Robert Rink on 5 October 2006 as confirmation that Aguado's leave was in fact confirmed by White, not her.
I accept the evidence of Zerafa and Aguado as to Finch's involvement in recruiting them. I find that there is no evidence of unwarranted interference in her duties in doing so by Adam White. His involvement in assisting in recruitment appears to me to be completely normal and unremarkable.
I find that Finch took the principal role in discussing and approving leave for Aguardo and in the appointment of Zerafa, and the allegation that these events occurred without her knowledge or consent is untrue.
Finch's complaint of discrimination on this ground is rejected.

[94]

Although this issue is relied on as an example of pregnancy discrimination in the particulars of complaint there does not appear to be any part of Finch's witness statement in which this issue is clearly addressed. None of the Respondents' witnesses were questioned on this issue. There is no evidence of any pattern of announcing a pregnancy within the company, or any detriment to Finch in respect of the announcement of her pregnancy.
Franklin said that in August of 2006, not long after the sales conference, White had told her that Finch had informed him that she was pregnant. She said that there was no procedure for announcing the pregnancy of an employee. It would depend on who the person was and what they wanted to do. If someone had been trying to fall pregnant for a long time they might send around an email with the good news. However, often people just told others in person.
Finch told White that she was pregnant in late August of 2006. His evidence was that he would not generally make an announcement to staff about someone being pregnant and that he did not do so for Finch. He said that he would be very wary about making such an announcement in case the staff member had a miscarriage or did not otherwise wish the pregnancy to be publicised. His evidence further was that in his observation Finch talked openly about being pregnant and he thought generally people knew that she was pregnant and there was no need to make a particular announcement about it.
His evidence was that he treated her in no different way when he came to know that she was pregnant than he would have treated any other employee of the company, particularly in relation to the exercise of her responsibilities as State Manager and in relation to the disciplinary process which he undertook in relation to her.
John Simcocks gave evidence that he did not announce her pregnancy out of respect to her and all of the witnesses confirmed that there was no general company policy of announcing pregnancy.
Katrina Lawrence gave evidence that there was no policy of announcing pregnancies within the company. This was for what seemed to me to be the sensible reason that it would be up to an employee to decide whether they wished to divulge the fact that they were pregnant, to avoid possible trauma in the event of a miscarriage.
It appears to me to be an extraordinary proposition to suggest that a company should have had a formal policy for announcing the pregnancy of staff. I have no hesitation in finding that the company had no such policy, should not have had such a policy, and that the absence of an announcement of Finch's pregnancy can in no way be characterised as discrimination against Finch on the grounds of pregnancy.

[106]

Finch claims that on 10 October 2006 she was telephoned by Adam White who insisted she go into the head office urgently for a meeting. She said that she told him she was pregnant and was concerned and upset about these meetings at which she had been constantly falsely accused and spoken to unfairly.
She said that she told him she wasn't well enough to attend the meeting and couldn't go in and that she would want Gillian Franklin to be there at the time of the meeting. She said that Adam insisted that she "just come in now".
In contrast, Whites evidence was that when he asked her to attend for the meeting, Finch said she was tired, and could not come that day but would do so on the following day. He said he was given no indication from the conversation that she was not well.
He said on the day appointed for the meeting, Finch left a voicemail message on his phone to say she could not keep the appointment, and that thereafter he attempted to contact her several times to rearrange the meeting, not having any reason to believe that her inability to attend the meeting was in any way related to illness or impairment.
White's evidence supported by an email from him to Finch written on the same day in which he told her he was happy for her to come in on a later date.
The appointment was rescheduled for 12, and then 17 October which was a date which both White and Gillian Franklin, who was also to be attending the meeting, expected that Finch would be back at work.
White said that when he contacted Finch on 10 October 2006 he understood her to be on annual leave, not sick leave.
At no time did he intend that she should attend the meeting if sick. He denied that Finch had told him during the period of contact that she was sick or worried for the health of her unborn child.
Specifically his evidence is that until Heat received Finch's WorkCover claim, he was not aware that Finch was on stress leave. He did realise that she was away sick in the week of 12 October 2006. At the time he thought that she probably wasn't sick and was saying that she was in order to avoid a discussion about her performance. It was not until the next week that he received the WorkCover claim.
His evidence was that in arranging a meeting time he had done so presuming that the times arranged would be times at which she would be back at work and that he would not have required her to attend the meeting at a time when she was on sick leave or unable to attend by reason of any impairment.
The email exchanges between Finch and Franklin over this period are explicit and are contained in Exhibit 23 to Gillian Franklin's affidavit. The exchanges show that Finch wanted to have advance details of the reason for the meeting. Finch suggested that if she was to be given a formal warning this could be sent out by mail.
Franklin gave evidence that she thought Finch may be worried about publicity within the company if she attended a meeting and so gave Finch the option to choose the date and also the place of the meeting. As far as Franklin was concerned, Finch was away over that period on annual leave, and not on sick leave.
Finch also suggested that Gillian Franklin had required her to meet with her between 19 and 21 June 2006 when she was on sick leave. However, on being shown the emails between herself and Gillian Franklin in respect of this issue it is clear that Franklin's position was that she was happy to meet with her at the time that Finch herself nominated and had not unreasonably required her to do so when ill..
Franklin's evidence was that after the conclusion of management training for Finch in August 2006 she became aware from discussions with Adam White that Finch's sales results had dropped considerably and that she was now performing very poorly compared to other State Managers. She said that because of this poor performance she had discussions with White and Kadlecik and agreed that a second warning was justified based on her sales performance. A warning letter was therefore prepared by White in draft although it was not ultimately given to Finch.
She had expected that White intended to meet with Jo-Anne, discuss her performance and give her the letter. At the time of this discussion Finch was still at work. However, around 11 October 2006 White came to her and said he was having difficulty getting Finch to come into the office to meet with him.
Franklin thought it was appropriate that she also attend the meeting and asked White to coordinate the meeting around her diary. She wanted to be involved with the meeting as she had assured Finch that she would follow up and make sure the correct procedures were followed and she was treated fairly.
Her evidence was that at the time she attempted to organise this meeting she was not aware that Jo-Anne had had any complications with her pregnancy or that she was claiming work-related stress.
Having been told by White that Finch was sick on 12 October 2006, the meeting was rescheduled for 17 October 2006. Franklin's evidence was that it was scheduled for that day because she expected that Finch would have returned to work on that day. Her evidence was that she did not believe there was any reason not to have the meeting as Finch had not applied for sick leave and she had no reason to believe that she was ill.
She had known that Finch had been away on sick leave on 2 October and she had assumed that this was related to her pregnancy as Finch had described it as being required for "check ups". She had no reason to believe this was related to an illness or that she was sick.
Ultimately the meeting scheduled with Finch at which the letter of warning was to be delivered did not occur. Franklin's evidence was that Finch emailed her asking that if it was the intention to issue her with another warning or dismissal this could be done via mail.
Franklin formed the view that Finch was concerned about any warnings or dismissal becoming public knowledge. She emailed Jo-Anne to try to make a time to meet with her to resolve the matter, saying that it was not appropriate to send a warning or dismissal via mail and it was important to meet face to face so the matter could be fairly discussed.
In the email she made it clear that Jo-Anne should have the opportunity to pick the venue and date. Franklin said she wanted Finch to set the date so that she knew she would be well enough to attend the meeting. She did not want to have the meeting if Finch was still feeling ill.
Franklin's evidence was that thereafter Finch lodged a claim for workers compensation on the basis of work-related stress, and the matter was dealt with in the way it would be dealt with for any employee.
White agreed he had known Finch had spent one day at the Geelong hospital previously, as he was told that by Aguardo.
Aguado said that the Geelong trip took place in the second week of her employment. She did not see Finch again after the Geelong trip. She said she was concerned for Finch's health, and so sent a text message to her a week after the Geelong trip. She said she had no response, so spoke to White after another week, telling him of the Geelong hospital incident, and enquiring of Finch's health. She also sent another text message to Finch, and again received no response.
If Aguado's evidence is accepted, this means White did not know of Finch's hospital visit until well after he had commenced to make arrangements for her to attend for the scheduled meetings on 10, 12, or 17 October.
Finch suggests that the Geelong trip took place in the first week of Aguardo's employment and that by the time White contacted her on 10 October he would have known of her fragile state of health.
I accept Aguado's evidence and conclude that White was first notified by Aguado at the end of October of the Geelong hospital visit. This means that as at the time he was arranging for Finch to attend the office, White did not know of any impairment or fragile state of health suffered by Finch.

[108]

Finch said that on 12 December 2006, whilst she was pregnant and on stress leave, Darren Scotti had contacted her requiring her to obtain a report from the treating doctor.
She says that the continued contact of members of management at the time when she was ill constitutes discrimination on the grounds of her impairment.
However, she conceded in cross-examination that correspondence between herself and the company which took place when she was on a period of annual leave was instigated by herself.
At paragraph 43 of her first witness statement Finch asserts that even though she was on annual leave, Kadlecik required her to work. At that time arrangements had been put in place for her to make a daily call to Brigid Lorenc, one of the sales persons under her control. She said that Kadlecik required her to continue the daily calls despite being on leave in September of 2005. At the hearing before me Finch significantly changed this evidence. She said that the reference to Bridget Lorenc was not correct and that in fact the daily call required of her was to be made to Samantha Stack.
White said the major occasion on which he recalled contacting Finch whilst she was on leave was when he was planning entertainment for some of the company's clients, and wished to invite the relevant personnel from Pharmore and Pulse pharmacies, accounts controlled by Finch.
He said he did not know who the contacts were, or their email addresses, and had no choice but to ask Finch. He said he did not want to take the unprofessional step of telling the contacts that he did not know who they were. White's evidence was that in fact it was Finch who contacted him whilst she was on leave on several occasions. However, he agreed that he did contact her on two or three occasions, on each occasion by email. He pointed out that he sent emails via the company's intranet, so Finch could not have accessed them unless she had decided to accessed the company's intranet at home.
His evidence was that once he realised that she was ill and pregnant, he thought it was not appropriate to send a warning letter as this might increase her stress and that he would need to deal with her performance issues when she came back to work. He had not thought that she would be away for very long.
He said he did not want to bombard her with emails while she was ill but contacted her a couple of times by email with specific questions relating to her customers. He said he did this because he thought she might be offended if he did not keep her informed about these matters and that those emails were sent only in the first few weeks of her leave. He denied that he regularly or persistently interrupted her leave without appropriate cause.
I accept the evidence of White and Kadlicek which I have set out above and conclude that the allegation that Finch was unnecessarily contacted at home on many occasions whilst she was ill and known to be ill are not proven.
The sending of a warning letter in January 2007
I have discussed the circumstances surrounding the sending of the letter dated 4 January 2007 when dealing with the claim of victimization. I adopt the conclusions expressed there, and find on the basis of those conclusions that the sending of this letter also did not amount to discrimination on the basis of pregnancy.

[122]

At paragraph 36 of the particulars of complaint it is claimed that those Respondents victimised Finch in the following ways:
1. by refusing to acknowledge Finch's pregnancy;
2. by refusing to pay Finch 12 weeks maternity payment;
3. by advising employees of The Heat Group that Finch was suing the company;
4. by denying Finch's WorkCover claim; and
5. by attempting to have Finch resign from her employment.
A further claim of victimisation occurs at paragraph 78 of the particulars of complaint where it is asserted that the warning of 4 January 2007, or any other previous warnings to Finch:
1. fabricated a basis for rejecting that it had caused work-related stress;
2. victimised Finch for asserting rights under the protection of the Accident Compensation Act; and
3. victimised Finch for lodging the discrimination claim in the Equal Opportunity Commission.
Paragraph 88 of the particulars of complaint say that the email sent to all staff by Gillian Franklin in July 2007 had the effect of further victimising her.
However, the most detailed sections dealing with victimisation are to be found in paragraphs 140 - 147 of the particulars of complaint. Those sections deal separately with the conduct of Gillian Franklin, Peter Kadlecik, Adam White and John Simcocks, and assert that each of those persons has victimised Finch in different ways.
In relation to Gillian Franklin, Finch says that she has victimised Finch by reason of the matters contained in paragraphs 35 and 36 of the particulars of complaint. I have already set out the content of paragraph 36. Paragraph 35 alleges that Finch raised concerns with Franklin between October 2003 and October 2006 about the way that she was being treated by Kadlecik and Simcocks and in particular that Kadlecik had "engaged in acts of discrimination towards her and other female staff" and that there was a culture of discrimination affecting her and other female staff.
Finch also asserts that Franklin has discriminated against her by not addressing concerns which were raised by Finch (this is not clear from the pleading but I presume that is what is intended by the reference to paragraph 67).
Finch also alleges that Franklin has victimised her in not paying maternity leave to her in accordance with company policy. She gives some particulars of that allegation. She says that Franklin and also White represented to her that maternity leave was only payable when the worker returned to work and not during any leave period and that this representation was untrue.
Finch further alleges that Franklin victimised her by the sending of an email in October 2007 to all Heat group staff.
The allegations of victimisation against Kadlecik are set out in paragraphs 34 and 42 of the particulars of complaint. Paragraph 42 contains an allegation that when Finch asked Kadlecik if she would be considered for the role of National Field Manager he replied that "only a male would be good enough for the role".
The allegations in paragraph 34 are very broad ranging. They apply to the time period between 2002 and 2006. They contain allegations of Kadlecik having discouraged and threatened her from taking steps to pursue her concerns about Kadlecik's treatment of her and other female staff. In addition they contain allegations of bullying or harassing behaviour and of conduct which she says "had the effect of subverting Finch's authority with other members of her staff." This allegation of diminishing her standing with her staff seems to relate to both things Kadlecik said to her and an allegation that he took over her responsibilities.
Insofar as it relates to things he said to her, Finch suggests that he told her she was being disrespectful to him if she wanted to pursue her concerns further, threatened to physically harm her in July 2005, falsely accused her of cheating, issued her a verbal warning on 16 June 2006, spoke to staff to obtain information about her management style, and gave her a warning on 4 July 2006, and passing on information about that warning to Adam White when he was employed by the company in July 2006.
Insofar as it relates to a suggestion that she diminished her standing with the employees, it was suggested that Kadlecik authorised pay increases for her staff without reference to her, refused to allow her to advertise for staff, selected David Zerafa as a staff member without consulting her, and provided information to her subordinates without giving that information to her.
Finch further alleges that Adam White victimised her. She says that he did so by making hostile or inappropriate comments to her such as that she was a "crap manager" and should "leave her concerns alone, drop it and move on" and also that he swore at her and verbally abused her. She says that he further victimised her by regularly and persistently contacting her, interrupting her authorised leave without appropriate cause, by contacting her by phone and email.
She says that he further victimised her between July of 2006 and October of 2006 by discouraging her from taking steps to pursue her concerns, speaking to her in a bullying or harassing manner, suggesting she would suffer a detriment if she persisted complaining and taking steps to undermine her with other staff.
In particular she relies upon the actions of White at the meeting in September of 2006 as victimisation. She appears also to rely upon an allegation he misrepresented her and her team's sales figures, questioned her about her maternity leave and threatened the future of her employment and managed her performance "in an assertive and controlling manner".
Finch further alleges that White victimised her during October of 2006 when she was absent from work on work related stress by directing her to attend a meeting to discuss work performance issues identified at the September 2006 meeting. She asserts that she was given no proper or adequate opportunity to address the matters raised at the September 2006 meeting.
The last aspect of victimisation alleged against White is said to be pursuant to paragraph 73 of the particulars of complaint. Those particulars assert that Finch requested three months pay for maternity leave and I presume the claim for victimisation against White relates to her not being paid for that leave.
Finch further asserts that John Simcocks has victimised her. In making this claim against Simcocks she also relies on paragraph 34 of the particulars of complaint. I have identified those paragraphs in discussing the complaint for victimisation against Peter Kadlecik. The complaints against Simcocks appear to be almost identical to the complaints made against Kadlecik.
It is important to recognise that proof of a claim of victimisation does not depend on proof that the claim made is itself valid. Thus, even though I might consider Finch's claim that she had been discriminated against by the Respondents on the various grounds asserted not proven, it would still be a breach of the Act if the Respondents victimised her for making such a claim. This section of the Act is very important to ensure that persons bringing claims under the Equal Opportunity Act can do so with out fear .
I do not intend to deal with each of these complaints of victimisation which I have identified above separately. It is clear that in order to prove that an act of victimisation has occurred a Complainant must be able to demonstrate that the Respondent has subjected or threatened to subject a person to a detriment because that other person has either made a complaint or brought proceedings under this Act, or otherwise engaged in activity relating to the procedures under the Equal Opportunity Act.
It is also clear that Finch does not need to prove that the Respondents intended to victimise her by her actions. The focus is on the causal connection between the acts of victimization alleged and the doing of any of the acts set out in section 97 of the act, not on the state of mind of any of the Respondents in performing those acts.
Counsel for Finch invited me to find that the various complaints Finch had made, commencing from her complaint about the company's refusal to allocate the Gippsland territory to her in 2003, were complaints falling within section 97 of the Act, and that the Company and Franklin, Kadlecik, White, and Simcocks did the various acts identified in the particulars of demand because she had made these complaints.
Counsel did not rely on section 97(1) (a) of the Act. This section does not apply as the word "complaint" in that subsection has a special meaning inapplicable in this case. Instead, counsel relied on subsection 97(2)(f) . That section reads:

[126]

The Complainant says that in protesting about each of the alleged instances of discrimination which I have so far outlined, she was effectively alleging that the company and its management had discriminated against her, and this is sufficient to found a claim of victimization.
It is clear that subsection (2) (f) allows for a situation where a complaint is made, but the person complaining does not clearly articulate that it is a complaint under the Act, or that what has happened constitutes unlawful discrimination.
This legislation is remedial. It exists to provide a remedy for unlawful discrimination. The victimization provisions exist to ensure that a person is not dissuaded from invoking the protection of the Act by being faced with adverse consequences. No one in the community should be afraid to invoke the protection of the Act, and no one should suffer for having done so.
This principle is so important that, as I have pointed out, a claim for victimization can succeed out even if the allegation of discrimination is not itself made out.
But in this case I find as a fact that the Complainant did not at any time suggest that the unfairness of which she complained had occurred as a result of her sex, as a result of her impairment, or as a result of her pregnancy.
Counsel for Finch submitted that it was not necessary for Finch to have linked her claim of unfair treatment to any attribute. She said that to impose such a burden on a complaint would be tantamount to requiring a Complainant to identify all the elements of a cause of action, and be contrary to the social purposes of this Act, which is designed to protect Complainants, who would invariably have no access to legal advice at this stage of making a complaint of discriminatory behaviour.
Counsel for Finch submitted that I should be satisfied on the evidence that the way in which Finch had raised her complaints, complaining for instance that a male had been allocated a territory which she thought should have been allocated to her, or that a male had received gift packs whereas she had not, was sufficient to make it clear to the Respondents that her concern in raising these issues was about sex discrimination.
She also said that Finch's emails to Franklin and to other management staff where she detailed her hospitalization and illness and concern about pregnancy were sufficient to constitute a complaint in respect of these attributes.
In final submissions counsel for Finch relied on the above complaints, and also her evidence that she complained to Simcocks on the day after the 2005 Christmas party, her complaint about gift packs on 13 June 2003, and the "from my heart" email of 17 June 2006, as each constituting allegations for the purpose of section 97 (1) (f).
It is my view that in order for section 97(1)(f) to have operation, that whatever form the allegation takes, it must squarely raise the issue that the treatment complained of is connected to an attribute, and state what that attribute is. This is because section 97(2) provides that the allegation must "state the act or omission which constitutes the contravention". I do not see how an act of discrimination can sensibly be alleged in a vacuum. It can only exist in the context of an attribute.
Thus I decline to characterise any of the many complaints about which Finch has given evidence in this case as falling under section 97 of the Act.
There is a further possible way in which section 97 can be utilised. The final paragraph of subsection (1) allows for a contravention in the event that a detriment is threatened "because the person believes that the other person or the associate has done or intends to do any of those things."
For this paragraph to have any application to this case, I would need to be satisfied that the Respondents anticipated that Finch intended to bring a complaint to the Equal Opportunity Commission, or that Finch intended to allege acts or omissions which would constitute a contravention of the Act.
There is no evidence at all which points to such a conclusion. I accept the Respondents' evidence that they did not understand Finch's complaints to be of conduct which could be characterised as unlawful discrimination, and there has been no suggestion in the pleadings or witness statements that she believed she might have intended to do so.
If I am wrong, and the various complaints can be characterised as allegations within section 97(1) (f), the further hurdle to be overcome is to establish a link between the allegations and the behaviour of which Finch complains.
In some cases, it is appropriate to draw inferences as to the presence of such a link between the making or anticipated making of a complaint and behaviour causing detriment. It is often impossible to point to documentary evidence or evidence of admissions prove victimizing behaviour.
Finch suggests that the numerous examples which she has outlined of unfair treatment directed towards her - for instance, Kadlecik having threatened to "strangle her", requiring her to orchestrate gifts for him, and the way in which her sales performance was questioned - should lead me to infer that the company had a "mindset" against her, that it was "attempting to manage her out", and that these matters make it more likely that there is a link between this treatment and her complaints.
Counsel for the Complainant has referred me to the chain of reasoning exemplified in the cases of McKenna v State of Victoria and ors (1998) EOC 92-927 and Poniatowski v Hickinbotham (2009) FCA 680 (a case to which I have earlier referred) and suggested that inferences were available in the case before me to use in a similar fashion as had been utilised in those cases.
In McKenna, a decision of a predecessor to this Tribunal, the Tribunal observed that the Complainant must establish a causal link between the complaint and the subjection to detriment, and that it was in the nature of complaints of victimisation that it was difficult to establish such a causal link. The Tribunal went on to say;

[133]

It is apparent from the evidence that the company initially refused to pay the WorkCover claim and that it was later paid after a conciliation conference.
Scotti was given responsibility within the company to deal with Finch's WorkCover claim which was lodged on 25 October 2006. He said that this was the first workers compensation claim he had had to deal with whilst at Heat. His evidence was that he dealt with it through the workers compensation agent, QBE, and that in doing so he treated the claim as he would have treated any other claim.
He said the company referred it to QBE, the company's WorkCover insurers. He said QBE disputed the claim on the company's behalf. He understood that this was because it related to stress which arose from reasonable performance counselling. Because Heat disputed the claim an independent investigator investigated the dispute, and that independent investigator recommended rejecting the claim.
Finch challenged the company's rejection of the claim, and a Conciliation conference was convened under the provisions of the Accident Compensation Act. Scotti said that once an order had been made by the Conciliator that the payment be made, the company complied with this decision and the claim was paid in the normal manner.
He said that there was a delay in making payments to Finch but this was because there was a delay in Heat receiving the findings of the Conciliator. He said that Finch received the findings before the company did and that he contacted the insurer to obtain the company's copy. As soon as the company received a copy of the order from the conciliator payment was made to Finch immediately.
Scotti confirmed that the first payments were made to Finch by the company directly, but that thereafter payments were made via the company's WorkCover insurer, QBE.
Finch asserts that the company "refused, failed and neglected" to pay WorkCover payments. The only facts on which she relies to support this assertion is the company's admission that payments were late, and the fact that payments were not made direct by the company, but through QBE.
She asks me to infer that this behaviour shows unwillingness on the part of the company to pay her what she was legally entitled to, and that this unwillingness arose because she had made a complaint of discrimination against the company.
She says I should infer that QBE was forced to take over making payments because the company refused to do so.
Scotti's evidence was that the company had the option of paying direct, or giving authority to its insurer to make the payments. He said it chose the latter option as the company was small, and did not want the extra administrative burden of administering payments.
In the face of a reasonable explanation from the company both as to the delay in paying WorkCover payments and the reason for payments being made by the insurer I am not prepared to make the inference sought.

[134]

Although I have suggested that this allegation is difficult to conceptualise as a ground of discrimination, it is available as a ground of victimization, if Finch could establish that the company failed to pay maternity leave because she had made a complaint of discrimination.
Finch asserts that the company's maternity leave policy either did not exist, or was arbitrarily applied to exclude her because she had made complaints of discrimination. I have already expressed my view that the complaints made by Finch cannot be characterised as allegations under section 97(1)(f) of the Act.
In any event the evidence of the Respondents was that at the time Finch became pregnant she was not entitled to the payment as she did not fulfil the conditions under which it was to be paid. There was ample evidence that the maternity leave policy did exist, that Finch knew of the conditions giving rise to payment of maternity leave, and that those conditions were applied to all staff.
Franklin said that at the time of inception of the company maternity leave was offered for employees which consisted of six weeks pay. She said that later this was increased to three months pay. However, in about 2005 she decided to make a change to the policy so that the three month payment would be paid to the employee only on return to work.
She said that this was done as she believed the maternity payment was made in order that women with children would not be disadvantaged in their careers and not as a reward for pregnancy. She wanted to retain valuable staff by encouraging them to work after having children and regarded the maternity payment as being to protect the investment the company had made in training staff, a type of staff retention strategy to encourage return to the workplace.
Finally, her evidence was that the company could not afford to pay three months pay to a person and not have them come back to work, bearing in mind additional recruitment and training costs if they did not return.
She gave evidence that she had paid $400,000 in paid maternity leave since the inception of the company.
She said that if an employee had financial hardship she was prepared to make the payment in advance and had arranged to do so on four occasions. However, within the company's books the payment was treated as a loan and if the employee did not return to work at Heat after the three month period, she would be required to pay back the loan. In fact, there had been no occasion on which this had occurred.
Franklin's evidence contrasted significantly in one respect with the facts asserted the company's response to the EOC. In this document the company asserted that the maternity leave policies for the company were never put on the company's intranet.
This document was prepared by Scotti. His explanation was that he had prepared the document in late December, whilst Franklin was on holidays, and had not had a chance to discuss the document with her before it was sent. He said he checked to see if the maternity leave policy was on the intranet at the time of preparing the document, and found it not to be there.
However, his evidence before this Tribunal was that he had since realised that the intranet was being upgraded over the Christmas break that year, and this was the reason that the maternity leave policy had not been able to be accessed by him when he had endeavoured to do so.
Scotti said that it was a condition of eligibility for paid maternity leave that an employee return to work. He said Finch never indicated that she would return to work and therefore he and Franklin took the view that she was not entitled to paid maternity leave until such time as she returned.
Aguado also gave evidence that in October 2006 she spoke to Finch about the Heat maternity leave policy and Finch appeared to know the maternity leave policy well. She said that Finch told her that the qualifying period for maternity leave was 12 months and that you had to return to work to receive the payment.
Her evidence was that she discussed the maternity leave policy with Finch thereafter on a number of occasions, as she was interested in starting a family in the future and so wanted to know what her entitlements might be.
Although it is true that the Respondents evidence was contradictory as to exactly when the maternity leave policy was made available to staff, in hard copy or on the internet, it is clear that Finch did in fact know of the existence of the maternity leave policy, and what it contained by 3 February 2006, long before she herself became pregnant. This is undisputable; as she sent an email on that day to Peter Kadlecik setting out that it had been printed off for her by Vicki Malliaros, and detailing how it applied.
There is no evidence at all that the company applied its maternity leave policy in any unfair or discriminatory way to Finch or that it victimized her in doing so. The company's position is that it has not paid her maternity leave as she has not yet returned to work. There was no evidence linking the decision not to pay maternity leave to Finch to any unlawful purpose, and credible evidence was led as to the reasons why Finch was not eligible .
This ground of victimization is therefore rejected.

[173]

After these main headings, equivalent headings also follow for sexual harassment, victimization, authorising and assisting discrimination, and vicarious liability.
The reason I have set out this structure is that it is plain in paragraphs 126 to 132 that the only indirect discrimination alleged is in relation to sex, and that the allegation is confined in the way I have set it out above.
However, in final written submissions, counsel for the Complainant also maintained a claim of indirect discrimination on the basis of impairment and on the basis of pregnancy. She said the impairment and pregnancy discrimination arose out of the company imposing a condition that she attend to work queries, and attend meetings which she could not do because she was ill and had complications with her pregnancy.
The Complainant also said that the operation of the Respondents maternity leave policy effectively discriminated against her as she needed to return to work to become entitled to receive it, and she could not return to work because she was ill.
It was further asserted that neither of these conditions were reasonable within the definitions required under section 9(1)(c) of the Act.
Counsel for the Respondent objected to this late recasting of the Complainant's case. The objection was made having particular regard to an invitation I gave to counsel for the Complainant to consider whether she wished to reformulate of the claim at the outset of this hearing. It was apparent to me at that time that the particulars did not sensibly identify the appropriate cause of action in respect of many of the incidents described in the particulars.
Maternity leave was not dealt with in any detail by counsel for the Complainant in her opening .
Before lunch on 19 May 2006, the twelfth day of this hearing, counsel for the Respondent raised her concern as to how the issue of maternity leave was relied on as a ground of discrimination. Over lunch, counsel for the Complainant agreed to look at this over lunch and the possibility was raised of her preparing a document setting out clearly the grounds to which the evidence about maternity leave related.
When the hearing resumed, counsel announced that she was not in a position to provide a written document, but that she could confirm that maternity leave was relied on as discrimination on the grounds of impairment and pregnancy, and also as evidence of victimization.
I have detailed these facts as it is quite apparent to me that there was no reliance on maternity leave as a ground of indirect discrimination in the particulars of claim or in this oral statement made by counsel for the Complainant. No such suggestion was made before me on 19 May, or at any time during this twenty day trial until counsel for the Complainant made final submissions. No such suggestion appears in that part of the particulars which follow the heading "Indirect Discrimination".
Counsel for the Complainant referred me to paragraph 117(c) of the particulars of complaint, where under the heading "Discrimination on the Basis of Impairment" the following appears:

[175]

Counsel suggests this paragraph provides sufficient notice to the Respondent of an intention to rely on a claim for indirect discrimination on the basis of non-payment of maternity leave.
I have not set out the full context of this paragraph. However it is important to note that it does not mention maternity leave, appears after an allegation about failure to pay workers compensation and accident makeup pay, and appears in that section of the particulars which is headed "Direct Discrimination".
I do not regard it as providing notification in the manner suggested. This is reinforced by the indication of counsel on 19 May in which no claim for indirect discrimination was mentioned at all.
Counsel for the Respondent pressed strongly that the way in which these claims of indirect discrimination had been raised amounted to an ambush on the twentieth day of this trial. She referred me to several authorities in which it is made clear that failure to provide proper particularisation is viewed as a breach of the rules of natural justice.
Clearly this Tribunal encourages informality in contrast to the emphasis on pleadings apparent in court procedures. However, the informality of the Tribunal must not be used as an excuse for failing to disclose the true grounds on which relief is sought from the Tribunal.
In my view the attempt to rely upon indirect discrimination in this way is an ambush, and it would be a breach of the rules of natural justice to consider the allegations of indirect discrimination in relation to impairment and pregnancy in this proceeding.
Counsel for the Complainant submitted that there was no disadvantage to the Respondents if the matter was allowed, as there was evidence form the Respondents witnesses going to the question of whether the proposed maternity leave policy was reasonable. Certainly counsel for the Respondent did point out some evidence relating to that issue which may have constituted a defence.
However, the law relating to indirect discrimination is difficult. Indirect discrimination cases need to be properly prepared. In the event that a Respondent seeks the protection of those sections of the act dealing with the reasonableness of the limitation, or the characterisation of the conduct as a special measure, this Tribunal has always called for detailed evidence of the facts. The Respondents have not had the opportunity to consider the factual claims from the perspective of indirect discrimination. It would be unfair to require them to meet such a claim now that all of the evidence is in.
Further, it is my view that the Tribunal does not have the jurisdiction to entertain these claims. Although the Equal Opportunity Act has recently been amended to allow claims of discrimination to be dealt with directly by the Tribunal, this legislation does not have retrospective effect.
Thus, in order for this Tribunal to determine these claims, the claims need to be referred to the Tribunal by the Equal Opportunity Commission. There is nothing in either of the complaints to the Equal Opportunity Commission which suggests the making of a claim of indirect discrimination in the manner suggested. These are two new causes of action, and cannot be considered by this Tribunal until referred to the Tribunal by the Commission.
The claims of indirect discrimination on the grounds of impairment and pregnancy are thus not to be decided by me in this proceeding.
The claim of indirect discrimination on the grounds of sex is not supported by any of the facts in this case.

[193]

Finch makes a claim of sexual harassment against Peter Kadlecik and Darren Scotti. If either of these claims is made out then the claim can be properly sheeted home to the company as well as to the individual employee who carried out the act.
However, I am not satisfied on the facts that I have found in this case that the claims of sexual harassment against either Kadlecik or Scotti are made out.
The behaviour said to constitute harassment is as follows:
1. Paragraph 39 of the statement of claim - Darren Scotti made an unwelcome sexual advance to her. This was said to have taken place at a conference in Rye. The incident involved Scotti removing his clothing in the presence of staff before entering an outdoor pool. It was alleged that when he dressed himself after being in the pool he grabbed an umbrella from Finch's hand and tried repeatedly to hit Finch on the backside while chasing her.
2. Paragraph 38 of the statement of claim - it was suggested that between 2002 and 2006 Kadlecik made the following unwelcome sexual advances to Finch or engaged in the following unwelcome conduct of a sexual nature.
  - (i) He regularly commented on her appearance, telling her she was "hot, sexy, and looked good."
  - (ii) At the August 2003 sales conferences at the Rydges Hotel he stroked her hair by running his fingers through her hair.
  - (iii) In June 2005 he disclosed details about his personal sex life with his wife to Finch.
  - (iv) In August 2006 at a meeting of head office during discussion of work he commented to Finch that the national marketing manager who was female "had excellent breasts" and that he "enjoyed looking at them each day."
In respect of Peter Kadlecik, the allegation relates to four separate instances. No specific instances were put forward by Finch of occasions on which Kadlecik had told her she was "hot", "sexy" or "looked good". My understanding of her evidence was that he would frequently make comments such as these , and that such comments were unwelcome to her.
Kadlecik's evidence was that although he used the word "hot" at times, he would do it in the context of describing products as hot and that this was a common phraseology at the company, given that the company's name was The Heat Group. He otherwise denied making any sexual or unwelcome comments to her at all.
There is other evidence about Finch's use of words. Zerafa said she regularly used the words gorgeous, hot and sexy. He said they were a normal part of her vocabulary and he had never heard anyone use these words as frequently as she did.
Aguardo said Finch would use the words gorgeous, and sexy "all the time" in conversation, and she recalled Finch having described Kadlecik to her as gorgeous. Aguado also gave evidence that she never heard Finch being described by male employees as sexy or hot. In contrast, Aguado's evidence was that Finch would often make those comments about other employees.
Petropoulos' evidence is that she never heard Kadlecik, David Kemp or anyone else from Heat speak to Finch in an inappropriate way and that in fact Finch would say to her on occasion that she looked hot or sexy and that she heard Finch use similar language in relation to other females who worked for Heat.
Petropoulos said Finch often used words such as gorgeous, and hot and sexy. She recalled Finch calling a male member of staff gorgeous, and that they called each other "spunk". She said there was no sexual connotation to the use of these words, describing it as "girl talk".
I accept the evidence of Kadlecik, Zerafa, Aguado and Petropoulos. I doubt that the words referred to were used by Kadlecik. If used I am not persuaded that they were used in a context which carried any unwelcome sexual connotations.
The second allegation made by Finch is that in August 2003 during the annual sales conference at the Rydges Hotel, Kadlecik stroked her hair by running his fingers through her hair.
Once again Kadlecik emphatically denies this allegation. Finch's evidence was that the action was done in the presence of other employees at the conference. She describes the occasion as having been at a 2003 staff conference, when she and a group of other employees were drinking at the hotel bar, and then went back to one of the staff member's hotel rooms. She describes the incident as follows:

[195]

David Reid was called by her to give evidence on Finch's behalf in this proceeding, but gave no evidence of this event occurring.
It is noteworthy that in describing the incident she also alleges that Kadlecik was drinking alcohol. The evidence from Kadlecik is that he has never been drunk. The evidence of the Respondents witnesses is that they have never seen him drink alcohol.
Finch further suggests that in June 2005 Kadelick disclosed details about his personal sex life with his wife to her. This incident appears to be the incident described at paragraph 27 of her first witness statement. She said that she was at Kellick's desk speaking to him and he pulled out a box of tablets called "Wild for Men". She said that he showed them to her and commented that his wife had purchased them for him as he no longer wanted to have sex with her and she was becoming very upset about it.
Kadlecik agrees that he was at the time of this incident taking tablets described as Wild for Men. However, his evidence was that he was prescribed them for a purpose which had nothing to do with sex or erectile dysfunction, and that the conversation recounted by Finch did not take place.
The last incident is said to have occurred in August 2006 when Kadlecik said to Finch that the female national marketing manager "had excellent breasts" and that he "enjoyed looking at them each day".
Finch has not called any evidence to support her allegation that this incident took place. Kadlecik has given persuasive evidence that it did not.
In the circumstances, and taking into account my concern about the credibility of Finch's evidence overall, the lack of any corroborative evidence, the lack of reference to any of these incidents by Finch until she lodged her second equal opportunity complaint in October of 2007, her description in her first statement of complaint that she "_did not experience any major difficulties with Peter Kadlecik prior to June 2005"_and my assessment of Kadlecik as a truthful witness, I am not persuaded that any of these incidents took place as she has described them.
There are two incidents of sexual harassment alleged against Darren Scotti They are said to have occurred at the August 2006 conference. This is how they are described in the particulars of complaint:

[203]

I am very conscious that there has been no reference to this incident in any of the contemporaneous emails, letters or conversations. This is extraordinary, given that the conference took place about six weeks after the meeting with Kadlecik and Simcocks on 16 June 2006, and thus at a time when issues of the behaviour of other company employees towards her was, on her evidence, at the forefront of her mind.
It is also extraordinary that Finch would have agreed to Scotti visiting her home on 16 December 2006 had she been the subject of previous sexual harassment from him.
Both Finch and her husband were present when Scotti visited her home on 16 December 2006. Finch says she made many complaints of unfair treatment to him at that meeting. However, neither has suggested that this complaint of sexual harassment by Scotti, or indeed the complaint of sexual harassment by Kadlecik was raised on that occasion.
In fact there is no evidence from Ndiege at all suggesting that he was informed of any such incidents by his wife.
Finch does not mention it at all in the "from my heart" email sent to Franklin.
There is persuasive evidence from her roommate at the conference, Helen Petropoulos, that Finch was herself extremely drunk on the night on which the incident is alleged to have occurred, and this evidence is supported by evidence from Zerafa, Scotti, and Simcocks. This raises the possibility that Finch's evidence may be unreliable by reason of her own inebriated state.
In cross-examination she agreed she had not reflected on the seriousness of making such an allegation, or the effect it might have on the personal lives of those alleged to be the perpetrators.
Had the umbrella incident occurred as described I find that it would have been able to be characterised as unwelcome sexual conduct. However, once again, I express my concern at Finch's credibility.
I am required to form a judgment as to whether it is more probable or not that the incident occurred as has been recounted. An allegation of sexual harassment is of a serious nature.
Although the burden of proof is the civil standard, in the circumstances of this case, where much unreliable evidence has been proffered by the Complainant, I propose to exercise caution in coming to a finding of fact as to whether the facts on which this claim is based did in fact occur.
I regret that even in the absence of evidence from Scotti, I am not prepared to rely on the sworn evidence of the Complainant as to this incident. I am not prepared to find it is more probable than not that this incident occurred as described by Finch.

Finch v The Heat Group Pty Ltd

At a glance

Court

Decision date

Source

Judgment (208 paragraphs)

Finch v The Heat Group Pty Ltd (Anti-Discrimination) [2010] VCAT 802 (29 June 2010)

Parties

Legislation Cited (1)

Cases Cited (1)