Forkin v Young [2020] NSWCATAD 29 | Case summary

NCAT Administrative and Equal Opportunity|2019-11-04

Background facts

CTC Safety provides work health and safety training and consulting services throughout NSW. Throughout the period of Ms Forkin's employment, CTC Safety employed three people on a full-time basis: Mr Young, Ms Forkin and Mrs Cheryl Smith. Ms Forkin was responsible for providing Information Technology support to CTC Safety. Mrs Smith was responsible for general office administration. As CEO, Mr Young was responsible for managing the general affairs of CTC Safety. In addition, he delivered a number of contractors training and consulting services to external organisations on behalf of CTC Safety.
Mrs Smith and Ms Forkin worked at CTC Safety's sole office located on the NSW Central Coast in an industrial complex. Mrs Smith, Ms Forkin and Mr Young worked in that office. Mr Young also spent significant time away from the office delivering training and consultancy services to external organisations. The office was small and open plan in design. Mr Young, Ms Forkin and Ms Smith worked in close proximity. Adjacent to the office was a warehouse used by CTC Safety to store its equipment and training material. Ms Forkin and apparently Mrs Smith, were contracted to work Monday to Friday, 08:30 to 17:00. While the parties agree that Ms Forkin and Mrs Smith sometimes started and finished at different times, Ms Forkin claims that she was usually the first to arrive at the office in the morning. Mr Young, on the other hand, claims that Ms Forkin was often late, usually arriving after Mrs Smith. He claims that he had warned Ms Forkin about being late for work on "multiple occasions". Neither party provided evidence in support of their respective claims.

Comments made by Mr Young about Ms Forkin's appearance

In the complaint made to the Board, Ms Forkin claimed that from the start of her employment with CTC Safety Mr Young "constantly made inappropriate comments towards me of a sexual nature", including about her body shape. Ms Forkin claimed that on those mornings where Mrs Smith had not yet arrived at work, Mr Young made unsolicited comments such as "you smell nice", "you look nice today" and on those mornings when she went to the gym or the beach before work, "you look fresh and nice today, have you been swimming?". She wrote, "I tried my best to ignore him, but his comments escalated over the weeks before finishing my employment." In oral evidence Ms Forkin stated that she was not an assertive person and was "not good at speaking up".
In addition, Ms Forkin claimed that on one occasion Mr Young brushed past her breasts.
Mr Young denied making the comments attributed to him by Ms Forkin but conceded that he may have said to Ms Forkin, "You look good" or "You looked tired today", in reference to Ms Forkin appearing tidy or untidy. He stated that Ms Forkin sat at the front reception part of the office and CTC Safety considered dress code to be important. He claimed that when CTC Safety introduced new staff uniforms he commented to both Ms Forkin and Mrs Smith that they looked good in their new uniforms.
When asked by the Tribunal why he failed to call Mrs Smith to corroborate his claims about the nature of the comments he made to his employees, Mr Young responded that Mrs Smith could not be spared from the office because of work demands.

The alleged sexual relationship

In the complaint made to the Board, Ms Forkin claimed that from the start of her employment with CTC Safety Mr Young commented on "[H]ow poorly his wife treated him" and "[H]ow he thought I was nice and that we got along better than he and his wife". In addition, Ms Forkin claimed that Mr Young commented that he and his wife slept in separate beds and did not have "much of a sexual relationship". On her account, usually there was no conversation leading to these comments and Mr Young would "just bring them up". Ms Forkin claimed that these comments made her feel uncomfortable and she attempted to ignore them.
Ms Forkin claims that she and Mr Young had sexual intercourse on four occasions between 24 February 2018 and 5 March 2018, and, each time she felt "sick to my stomach". During this period, Ms Forkin was completing the development of a website designed to enable CTC Safety to deliver on-line training courses.
Ms Forkin claims that on Thursday 22 February 2018 while working late at the office trying to complete the website, Mr Young invited her for a drink at the local tavern. She accepted, claiming at that stage that she did not suspect that Mr Young had "any ulterior motives". She claims that while at the tavern Mr Young's wife contacted her by phone asking if she knew where he was. Mr Young then left.
According to Ms Forkin, two days later, on Saturday 24 February 2018 she was at the office, again working on the website. Mr Young was working in the warehouse. Ms Forkin claims that after having a shower in the bathroom located between the office and the warehouse, Mr Young started a conversation. She claimed that she "felt nervous and had a feeling that he might have been thinking something inappropriate". She claims that while working on her computer, Mr Young knelt down beside her and started to kiss her. She claims she tried to stop him but was hesitant about being too forceful because "it might result in her losing her job". She claims that Mr Young then took her hand, led her up the stairs into the training room, locked the door and "proceeded to have sex with me". She claims that she kept insisting that it "was not right" and reminding Mr Young that he was married. She said she was extremely worried about losing her job as it was her only source of income.
According to Ms Forkin, after that incident she felt stressed and uncomfortable, so much so that she decided to abandon her plan to attend work the following day, a Sunday. On the first three days of the next week, Mr Young was out of the office delivering training. On his return on the afternoon of 28 February 2018, he asked to speak with Ms Forkin about what happened on the previous Saturday. She claims they went to the local tavern and she told Mr Young she was fearful of losing her job and did not want "what had occurred between us to occur again". According to Ms Forkin, Mr Young assured her that she would never lose her job as she was "too valuable". She claimed that they returned to the office and Mr Young again took her up to the training room and again "proceeded to have sex with me". Ms Forkin claims that after this incident she became "even more distraught". She claimed that Mr Young kept making jokes and saying she was "good at having affairs".
According to Ms Forkin, on Friday 2 March 2018 she was unwell and contacted Mr Young and told him she was unable to attend the office but was able to work from home. At Mr Young's request, she agreed to meet him at the tavern to discuss "the personal situation". She claims that Mr Young told her he liked her "a lot" and was "thinking of leaving his wife and getting his own place". She claims she found this confusing as she had agreed to meet to explore whether they could remain friendly and continue to work together. Instead, she claims Mr Young started to kiss her and to flirt with her and then took her to a nearby lake where they had sex. She said she tried to demonstrate her lack of interest "in the kindest possible way" but "nothing would dissuade him".
Mr Young agrees that while at work he discussed his wife from time to time but denies speaking with Ms Forkin about his relationship with his wife or making dismissive comments about her. He claims that he, Mrs Smith and Ms Forkin regularly engaged in banter, including about their respective families: "normal conversation in a three-person office". He claimed that he had and continues to have a good relationship with his wife.
Mr Young does not deny being alone in the office with Ms Forkin on the dates she alleged they had sexual intercourse.
Mr Young disputes Ms Forkin's claim that the training room could be locked from the inside. He claims that because of fire regulations none of the internal doors in the office could be locked. In addition, he denies ever using the office shower while a member of staff was present at work. Neither party produced any evidence to support their claim about whether the training room could be locked.
When asked by the Tribunal why he failed to call Mrs Smith to corroborate his claims about the nature of the comments he made to his employees, he responded that Mrs Smith could not be spared from the office because of work demands.

The fortnight before Ms Forkin's dismissal

On Monday 5 March 2018, Mr Young conducted Mrs Smith's and Ms Forkin's scheduled annual performance reviews. Ms Forkin said she was extremely nervous, unable to concentrate and, after signing off on the documentation presented by Mr Young, immediately returned to her desk. She said when Mrs Smith left for the day, Mr Young again locked the door and they had sex. She claims that she felt horrible, and by this stage she did not respect Mr Young and had started to "lose her self-respect". Later that evening she sent Mr Young a text message stating she "[C]annot do it ever again", claiming that by this time she was "officially at breaking point". In oral evidence she stated that the word used in the text message were to the effect "We can't continue to do that - it is making me feel horrible".
According to Ms Forkin, over the next couple of days Mr Young attempted to talk to her and to be affectionate. She said she did not respond and made sure she was never in the office alone with Mr Young, leaving before Mrs Smith each day. She said that Mrs Smith started to "hang around" her desk towards the end of the day and ask when she would be leaving. According to Ms Forkin, Mrs Smith had never done this before, which made her suspect that Mrs Smith had "an idea about what had happened".
Ms Forkin claimed that by about 8 March 2018 it had become increasingly difficult to communicate with Mr Young about work matters and he "shut her out" of discussions about the company's website. She said she did not complain about his behaviour as she was fearful about the repercussions. Nor did she tell family and friends because she was too embarrassed.
In her statement dated 24 May 2018 submitted to the Board, Ms Forkin wrote that when she received her final pay on Thursday 15 March 2018, she emailed Mr Young saying that the amount of the proposed pay rise was insufficient. She wrote that this "escalated to many text messages and emails, suspension and ultimately unfair dismissal by text message on 19 March 2018".

Emails and SMS messages

In his response to the Anti-Discrimination Board, addressing the complaint made by Ms Forkin, Mr Young attached a series of emails and text messages between himself and Ms Forkin sent after 15 March 2018. They are set out in full below in unamended form.

Emails to and from Mr Young and Ms Forkin From: Di Forkin Sent: Thursday, 15 March 2018 7:25 PM To: Matt Young Subject: Re pay review The day we did the pay review i wasnt focused on the review I know its to be reviewed now every 6 months but considering my efforts I was hoping expecting a bigger outcome for me From: Matt Young Sent: Thursday, 15 March 2018 8:10 PM To: Di Forkin Subject: Re: Re pay review BOSS MODE. Not going to happen pay increase is based on profits when we get profits up it can increase. Profit was up 5 % (only because i did all of the training last year) cpi was 2.1%. Ur lucky i pulled your review into 6 monthly. I am a little annoyed actually. You have had 2 substantial increases 2 years running. More than most. You got a 1600 tae couse last year 1400 tax free perk in a laptop as well this year.. Your efforts are paid for in full to date. If your not happy with the review i can remove it and you can look at other options if you like. No one is irreplaceable in buisiness. Matt Young From: Di Forkin Sent: Thursday, 15 March 2018 8:46 PM To: Matt Young Subject: Re: Re pay review Got the message From: Di Forkin Sent: Thursday, 15 March 2018 9:03 PM To: Matt Young Subject: Re: Re pay review I should have talked bout that in the meeting when we talked I was merely stating my opinion that i hadnt in the meeting You need to do what you have to do now After that harsh email Kind regards Diane Forkin From: Matt Young Sent: Thursday, 15 March 2018 9:08 PM To: Di Forkin Subject: Re: Re pay review I dont understand this email. Please explain. Matt Young From: Di Forkin Sent: Friday, 16 March 2018 3:20 AM To: Matt Young Subject: Re: Re pay review I was just responding to your email I know no1 is irreplaceable what you suggested I have tried hard to show my commitment to ctc And considering my situation at the time i wasnt concentrating in the meeting I have the flu and passed out last night I did put in another long day at work yesterday I am going to try get in docs this morning as i may need antiobiotics if im ok to come to work i will if not i will let you know Lines crossed Regards di forkin From: Matt Young Sent: Friday, 16 March 2018 7:28 AM To: Di Forkin Subject: Re: Re pay review Your increase was in the vicinity of 6 k. No one gets that. You should be happy. Matt Young From: Di Forkin Sent: Friday, 16 March 2018 9:19 AM To: Matt Young Subject: Re sick today Attachments: 20180316_091755.jpg I have been to the docs and attached my medical certificate for today From: Matthew Young Sent: Friday, 16 March 2018 11:18 AM To: 'Diane Forkin' Cc: 'Di Forkin' Subject: FW: Performance Review Diane, Please find attached review summary from the 5th March 2018. Whether you were concentrating during the review or not I did confirm the outcome in writing on that day at your request. A review is a process that is fundamentally not negotiable after the fact. It is decided by management. CTC is not entitled to pay anymore than the 2.1% CPI under your current contract. CTC has decided to allow another 5% increase on top of CPI. With no response until approximately 7.25pm last night it was assumed that you had agreed to this. I am happy to re conduct the review so you have a chance to explain you reasoning for not accepting this outcome on this coming Monday. Kind regards, Matt Young From: Matthew Young Sent: Friday, 16 March 2018 3:52 PM To: 'Diane Forkin' Subject: FW: Performance Review Di further to the email below [email sent at 11:18 am]. I wont actually be in the office until Wednesday the 21st, I have training on the 19th and 20th. I will be very busy Wednesday so I won't be able to do anything on the website or your re review mentioned below until Thursday or Friday of that week (if I am lucky and no further training comes up). Kind regards, Matthew Young From: Di Forkin Sent: Saturday, 17 March 2018 12:21 AM To: Matt Young CTC Safety Subject: Re: Re pay review In the first instance i was stating my view on the pay review MY manner stayed calm as is still If you require me to have monday and Tuesday off i will use the days i worked on the weekends prior I was keen to get back in and finish launching I have a funeral on wed and needed to leave lunchtime I need to come in get stuff from fridge today late morning Regards Diane Forkin From: Matthew Young Sent: Saturday, 17 March 2018 8:03 AM To: 'Diane Forkin' Subject: FW: Performance Review Diane, I refer to your email below; CTC Safety withdraws its previous salary review offer, for it has not been accepted by you at this date. I am seriously concerned about your current behaviour towards me as your employer. You are the one who has chosen to communicate using this email volley rather than picking up the phone and talking to me or approaching me at the workplace. We are only a three person company and the approach is distasteful. Your manner has not been calm you have been disrespectful, irrational and in some cases threatening during this communication. It is inappropriate in an employer employee relationship you tell the employee what to do and it will not be tolerated in any form. You will not use any time in lieu because contractually you do not have any. I will clarify my position you are suspended without pay until we resolve this issue next Wednesday. The reason is that "we do not have an agreed pay rate". Please do not access the company's premises or the company's IT systems during this time. I would like you to attend an meeting on Wednesday 21st March at 9.30am here at Tuggerah with myself and a third party (Cheryl) can be present if you require. Hopefully this discussion may resolve your issues and the company's position. If you continue to test me and if you do not agree I will have to seek an alternate remedy to this stalemate you have created which will not be beneficial to any of the parties. In the mean time we still do not have a live website and the company is losing revenue as you are complaining about getting more money. There is no value in this at all. In the meantime if you wish to contact me to discuss the matter for, hopefully, an early resolution please do not hesitate to call me at any time. Kind regards, Matthew Young From: Di Forkin Sent: Saturday, 17 March 2018 8:22 AM To: Matthew Young Subject: Re: FW: Performance Review Attachments: image001.png I was in bed all day yesterday how could i print ou the contract and sign it From: Di Forkin Sent: Saturday, 17 March 2018 11:19 AM To: Matthew Young Subject: Re: FW: Performance Review Attachments: image001.png Agree :) [In response to Matthew Young's email of Friday, 16 March 2018 at 11:18] From: Di Forkin Sent: Sunday, 18 March 2018 9:04 AM To: Matthew Young III be in for meeting Wednesday Like ive already said i was stating my view on the pay review thats what i wanted to explain on the phone You had asked me to work weekends for time off From: Matt Young Sent: Sunday, 18 March 2018 9:15 AM To: Di Forkin Subject: Re: Re pay review I dont work Sundays. Matt Young From: Matt Young Sent: Sunday, 18 March 2018 6:10 PM To: Di Forkin Subject: Re: Re pay review Diane, I will be driving to sydney tommorow from 5.30 am to 7.30 am if you would like to call me. If not see you wednesday. Matt Young From: Di Forkin Sent: Friday, 23 March 2018 6:19 AM To: Matt Young Cc: [AWNA email] Subject: re: Keys and Uniform The keys and the uniform for CTC Safety were sent back yesterday by mail. Regards DIANE FORKIN

Text messages Fri 16 Mar. 2018 7:21:20 pm From: Forkin to Young I am going in tmrw to get my meat in fridge where would i find my gazebo metal base Slept all day talk Monday Fri 16 Mar. 2018 7:31:16 pm From: Young to Forkin Well are you staying or going? Fri 16 Mar. 2018 7:32:50 pm From: Forkin to Young Cant tmrw have family over liz back Fri 16 Mar. 2018 7:34:38 pm From: Young to Forkin I mean at work. Are you going to keep working there i am not sure. Fri 16 Mar. 2018 7:38:12 pm From: Forkin to Young Thats up 2 you guess depends if youve replaced me yet III be in monday 2 work as normal if you dont say otherwise Fri 16 Mar. 2018 7:40:47 pm From: Young to Forkin OK. Thank you for clarifying this. How could i replace you in 1 day. Fri 16 Mar. 2018 7:47:50 pm From: Forkin to Young Can u point me to where that gazebo base is is it in the factory? Fri 16 Mar. 2018 7:49:26 pm From: Young to Forkin Near the side door. Fri 16 Mar. 2018 7:49:41 pm From: Forkin to Young Ta Fri 16 Mar. 2018 7:54:12 pm From: Young to Forkin I would prefer if you took a few days leave intill this matter can be sorted out wednesday next week. Take Monday and Tuesday off. See you Wednesday. Fri 16 Mar. 2018 11:18:14 pm From: Forkin to Young Ok are you not there monday Tuesday ? Fri 16 Mar. 2018 11:21:56 pm From: Forkin to Young I have days in lieu that i worked too 2 weekends in a row Sat 17 Mar. 2018 8:22:34 am From: Forkin to Young I am tryg to call u? Sat 17 Mar. 2018 10:04:57 am From: Young to Forkin I am busy. Sat 17 Mar. 2018 11:13:55 am From: Forkin to Young Ok if you are worried bout me at all trust wise i can drop keys off to cheryl monday I dont have a problem with that Sat 17 Mar. 2018 11:18:05 am From: Forkin to Young Or i can pop them in the post seriously i wouldn't do anytg harmful i was up early and needed to marinate the chicken so i got my meat nothg more than that Sat 17 Mar. 2018 11:24:35 am From: Forkin to Young If you tryg to break me you are doing a good job Sat 17 Mar. 2018 11:48:27 am From: Young to Forkin I dont know what you are talking about even. I am very annoyed with regards to the way you communicated with me with regard to the salary review that is it. Nothing more. You were very disrespectful so i am treating you the way i was treated. I will call you later this afternoon if you like to discuss it. I am busy with the kids. Sun 18 Mar. 2018 7:46:05 am From: Forkin to Young Hi can we talk had family here till late Mon 19 Mar. 2018 7:33:49 am From: Young to Forkin I extended the olive branch again to call me this morning and you did not call. I am the employer not you. You persue a resolution. Not me. You are not going to win this contest if that is what you are trying to do. Get your head together or i will terminate. Mon 19 Mar. 2018 7:47:35 am From: Forkin to Young Ha thats what i get for not calling him Mon 19 Mar. 2018 7:57:58 am From: Young to Forkin Are you serious? Mon 19 Mar. 2018 8:07:44 am From: Forkin to Young that wasnt for you and was about sm1 else Mon 19 Mar. 2018 10:05:37 am From: Young to Forkin You are terminated without notice. Mon 19. Mar. 2018 6:30:05 pm From: Young to Forkin That wasnt for you and was about sm1 else Wed 21 Mar. 2018 6:50:40 pm From: Forkin to Young Why? Thu 22 Mar. 2018 1:20:17 pm From: Young to Forkin I have continuously offered to talk to try to resolve this, to no avail, you have chosen your path. The door is still open for resolution it is up to you. Thu 22 Mar. 2018 5:07:59 pm From: Young to Forkin To clarify the last text resolution means to negotiate the current flippant dismissal claim and pending law suit against you by ctc safety and the current police complaint about unlawful entry and theft of files and data. Thu 22 Mar. 2018 5:10:58 pm From: Young to Forkin I am now blocking this number. Contact me only through my legal advisor.

The text message ending the alleged relationship

The documents filed by Ms Forkin in these proceeding did not include a copy of the text message she claimed to have sent to Mr Young on 5 March 2018 informing him of her decision to end the relationship. When questioned by the Tribunal about that omission, Ms Forkin stated that she had unsuccessfully attempted to retrieve that message from her phone using data recovery software, Dr Fone®. When asked why she made no mention of that attempt in the statement dated 24 May 2018, submitted to the Board (and filed in these proceedings), she stated that at the time "she was very shaken up" and that she "didn't know it had to go into the statement".

The laptop

A couple of months before Ms Forkin's employment was terminated, Ms Forkin was given a laptop by CTC Safety. (She claims that it was a gift: "a $1500 tax free a gift for favours"). After terminating her employment, in a letter asserting that Ms Forkin had downloaded material from CTC Safety's intranet without permission (see [36] below), Mr Young claimed that the laptop was "company property" and demanded its return. That is inconsistent with the statement Mr Young made in his email to Ms Forkin on 15 March 2018, in which he described the laptop as a "1400 tax free perk".

The dismissal

As noted above, after a series of emails and text messages relating to the proposed salary increase, on 19 March 2018 Mr Young sent Ms Forkin a blunt text message: "You are terminated without notice". In these proceedings, Mr Young claimed that the reason he decided to dismiss Ms Forkin was because it had become apparent that he and Ms Forkin would no longer be able to work together, given her unreasonable and rude response to the proposed pay increase. In addition, he claimed that he dismissed Ms Forkin for "non-performance". In oral evidence Mr Young described Ms Forkin as a "mediocre employee" and her performance as "average to challenging". In these proceedings, when Mr Young was taken by the Tribunal to his email to Ms Forkin sent on 5 March 2018, outlining the proposed 7.1% salary increase (2.1% CPI + 5% "incentive") in which he wrote, "Dianne I would also like to note that your performance is outstanding and ongoing effort and commitment to CTC Safety has not gone unnoticed", Mr Young responded that this comment was consistent with his carrot, not stick approach "management style". He stated that at the time he was trying to encourage Ms Forkin to perform, especially because the development of the website was to be completed. He admitted that prior to her dismissal, he had never raised with Ms Forkin concerns about her performance.

Dealing between CTC and Ms Forkin after the dismissal

In a letter to Ms Forkin dated 22 March 2018, Mr Young accused Ms Forkin of "accessing the CTC safety premises and IT systems without permission" on the weekend of 17, 18 March 2018 and the evening of Monday 19 March 2018. In addition, he accused Ms Forkin of copying files without permission. He demanded the return of all "company property". He wrote "We remind you that theft is a serious offence and may result in legal action…".
Ms Forkin denies copying files without permission. She claims that occasionally she worked from home, especially towards the end of her employment when she was attempting to finalise the website. She agrees that she attended the office on the weekend of 17, 18 March 2018 but claims that it was to collect meat she had left in the office refrigerator. That claim is consistent with the text message sent by Ms Forkin to Mr Young on the evening of Friday 16 March 2018: "I am going in tmrw to get my meat in fridge".
After receiving Mr Young's letter of 22 March 2018, Ms Forkin returned the laptop and keys. Mr Young claimed that "our IT people" discovered on inspecting the laptop that the hardware had been "wiped". In addition, he claimed that the "IT people" advised that a vast volume of material had been downloaded from CTC's Dropbox and intranet. That claim is unsupported and denied by Ms Forkin.

Proceedings in Fair Work Australia

After being dismissed, Ms Forkin commenced unfair dismissal proceedings in Fair Work Australia (FWA). A conciliation conference convened by FWA did not resolve the claim and on 8 May 2018, Ms Forkin discontinued those proceedings. In these proceedings, Ms Forkin stated that in discontinuing those proceedings she had acted on the advice given by her representatives, industrial relations advocates, A Whole New Approach. She claimed she could not recall the reasons she was given for the advice.
The parties agree that none of the documents filed by Ms Forkin in FWA mention the alleged sexual relationship or sexual harassment. Ms Forkin claims that Mr Garry Pinchin, director of A Whole New Approach, was the first person she informed of the relationship. She claims that Mr Pinchin told her that Mr Young's conduct amounted to sexual harassment.

Disclosure of claim of sexual harassment to GP

Ms Forkin consulted her GP on 26 April 2018 reporting feelings of anxiety. She tendered in these proceedings a copy of the GP's notes of that consultation. The GP recorded "… unfairly dismissed from company; he was actually sexually harassing her for 2 years but she has not told anyone - often criticising his wife who has 2 small children, calling her fat and ugly … he tried to kiss her at work and she rejected him … not eating not sleeping; obvious to me today as she looks like she has lost a lot of weight … needs to see a counsellor".

General observations about the evidence

Determining where the truth lies in this matter is no easy task given the lack of any supporting evidence to corroborate the conflicting accounts given by Ms Forkin and Mr Young.
The evidence given by both parties is unsatisfactory in several material respects.
With respect to Mr Young, his claim that one of the reasons he decided to dismiss Ms Forkin was poor work performance is unsupported and inconsistent with contemporaneous documents. The explanation proffered for making the effusive comments about Ms Forkin's performance in the 5 March 2018 email - "[y]our performance is outstanding and ongoing effort and commitment to CTC Safety has not gone unnoticed" - that this was reflective of his encouraging management style, we find to be implausible and unconvincing.
Mr Young's explanation for failing to call Mrs Smith to give evidence - she could not be spared from the office because of work demands - in our view was equally unconvincing. While the rules of evidence do not apply in these proceedings (s 36 the Civil and Administrative Tribunal Act 2013 (NSW)) nonetheless regard may be had to the so-called rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298: see St Joseph's Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4 [77]-[85]. That is, an inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected, that this evidence would not have assisted the party's case. As explained by S. Odgers in Uniform Evidence Law (14th edition, 2019) at pp 333-4: [W]hile it may (depending on all the circumstances) be appropriate to conclude that evidence already adduced by an opponent which might have been contradicted by the uncalled evidence may be more readily accepted, and inferences open on the opponent's evidence more readily drawn, the failure cannot fill an evidentiary gap in the opponent's case.
Jones v Dunkel is not so much a "rule" as a logical tool or approach to drawing inferences from the absence of evidence that might be reasonably be expected to be adduced by a party to litigation. A court or tribunal is not required to apply it inflexibly. Had Mr Young been represented by competent counsel, and the evidence of Mrs Smith had not been adduced, and no plausible explanation for the absence of the witness had been given, an inference might be drawn against Mr Young. Given, however, that he is self-represented and not legally trained, we do not believe it is appropriate to apply the "rule". Mrs Smith may not have been able to say anything about the nature of the comments made to Ms Forkin. However, she may have been in a position to corroborate Mr Young's account that he made favourable and benign comments about the appearance of his employees. Either way her absence leaves a significant and unsatisfactory gap in the evidence.
Similarly, there are several unsatisfactory aspects to the evidence given by Ms Forkin.
First, her explanation for failing to produce a copy of the text message she claims she sent to Mr Young ending the alleged sexual relationship. Given that the alleged text was the only contemporaneous record evidencing the existence of that relationship, it would be reasonably obvious to her and anyone advising her that this evidence would be highly probative of her claim. Therefore, it would also be reasonably obvious that, if it were not produced, a plausible explanation would be expected and that Ms Forkin would need to address the reasons for its omission in the material filed in support of her claim.
Ms Forkin was aware from the series of text messages between her and Mr Young submitted to the to the Board on 11 July 2018, that it was possible to generate a log of text messages and, in addition, that this type of material could be used to support a party's claim, as Mr Young sought to do so to support his claim that Ms Forkin had acted rudely towards him in rejecting what he considered to be a generous pay increase. Ms Forkin was also aware from the material sent by Mr Young to the Anti-Discrimination Board that he denied both the existence of any sexual relationship and the existence of the 5 March text message. It may be accepted that when she made the complaint to the Board Ms Forkin was "a mess" and had not thought to explain why the 5 March 2018 text was omitted from the material she submitted to the Board in support of her complaint. However, that does not explain why, 12 months later in these proceedings, Ms Forkin failed to volunteer that explanation to the Tribunal. The hearing was the first occasion in which Ms Forkin gave the explanation of attempting to retrieve that message, and then only in answer to a question by the Tribunal. Furthermore, Ms Forkin's explanation of having attempted to retrieve the 5 March text message was unsupported by material that would be reasonably expected to be readily available to support her claim, such as a receipt for the purchase of the retrieval software or a screen shot of the failed attempt to retrieve the message.
Second, the absence of any mention of the alleged sexual relationship in the clinical notes made by Ms Forkin's GP of the visit on 26 April 2018 reporting feelings of anxiety is also troubling. The notes of that consultation detail Ms Forkin's report of having been sexually harassed by Mr Young over the past two years and of him criticising his wife and trying to kiss Ms Forkin at work. Not only is there no mention in the notes of any sexual relationship but they expressly state that Ms Forkin rejected Mr Young's attempts to kiss her. Of course, Ms Forkin may have had some reason for not giving her doctor a complete account of what had occurred but the inconsistency between her later complaint and her earlier account to the GP in which she specifically raised the issue of sexual harassment tends to undermine her credibility on this key issue.

Did, as claimed, Mr Young repeatedly comment on Ms Forkin's appearance?

Mr Young admits making comments about Ms Forkin's appearance but denies making comments about her body shape. The difference between the respective claims made by the parties about the alleged comments is one of degree. Mr Young admits that he made comments to the effect that Ms Forkin looked nice in her uniform. He conceded that he probably also made comments such as "you look nice" or "you look tired". Ms Forkin on the other hand claims that that Mr Young also made comments such as "you smell nice", "you look nice today" and, on those mornings where she went to the gym or the beach before work "you look fresh and nice today, have you been swimming?". In addition, she claims that from time to time Mr Young commented about her being slim.
While not an easy issue to resolve, having regard to the evidence as a whole, we prefer Ms Forkin's evidence to Mr Young's evidence on this point. First, Ms Forkin's claim about the alleged comments is not only plausible but evidenced a degree of restraint. In terms of offensiveness, the alleged comments are not at the high end of the scale. Second, the alleged comments are not inconsistent with the disclosures Ms Forkin made to her GP that Mr Yong "was actually sexually harassing her for 2 years" in April 2018. In addition, we find that Mr Young probably commented that Ms Forkin looked slim.
The more difficult issue to determine is the frequency with which Mr Young made those comments. In her statement submitted to the Board, Ms Forkin claimed that Mr Young made those comments on the mornings where Mrs Smith had not yet arrived at work, which on her account was a reasonably regular occurrence. As discussed above, it is difficult to determine on the available material how often Mr Young and Ms Forkin were in the office together before Mrs Smith had arrived at work, which is when Ms Forkin claimed those comments were made. It follows that it is difficult to reliably determine how often Mr Young made the comments about Ms Forkin "looking nice". Doing the best we can on the available material we find the comments were made on a reasonably regular basis but probably not more than monthly.

Do the offending comments and/or the "brush past" amount to unwelcome conduct of a sexual nature in relation to Ms Forkin, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that Ms Forkin would be offended, humiliated or intimidated?

To fall within the definition of sexual harassment, the offending comments must amount to "unwelcome conduct of a sexual nature in relation to [Ms Forkin]" in circumstances in which "a reasonable person, having regard to all the circumstances, would have anticipated that Ms Forkin would be offended, humiliated or intimidated".
The respective views held by the parties about whether the offending comments are of "a sexual nature" is not determinative. Nor is the subjective intention of Mr Young. The test is objective: Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Limited [2019] NSWCATAD 203 at [123], [124].
The offending comments are plainly "conduct in relation to [Ms Forkin]". Notwithstanding that Ms Forkin did not voice any objections to the comments, we find it more probable than not that while not initially, towards the later stages of her employment, the comments were unwelcome.
The assessment of whether the comments were of "a sexual nature" is more difficult. The term "conduct of a sexual nature" is not defined by the Act. It takes its meaning from its context. As paragraph (b) of the definition makes clear, the term is not restricted to conduct of the type described in the preceding paragraph - an "unwelcome sexual advance" and an "unwelcome request for sexual favours". The definition could not be read as being confined to conduct that is explicitly sexual, or especially offensive. Self-evidently the term is extremely broad and potentially captures a wide range of conduct.
The offending comments were not overtly sexual or laden with sexual innuendo. Assessed individually, the comments were somewhat benign and, in our view, do not amount to conduct of a sexual nature. That, however, does not answer the question of whether, when assessed as a whole, those comments amount to conduct of a sexual nature. Relevant to that assessment, is the frequency of the comments and the surrounding circumstances, which include the allegations made by Ms Forkin about Mr Young's unwelcome sexual advances and the alleged sexual relationship. For the reasons we discuss below, we are not satisfied that those allegations are established.
In certain circumstances, seemingly inoffensive comments about a person's appearance may amount to conduct of a sexual nature. For example, where the alleged harasser uses a suggestive tone of voice, where the comments are made on a regular and repetitive basis or where the comments form part of a broader pattern of inappropriate sexual conduct (see for example, adopted in Shiels v James [2000] FMCA 2 at [72]; Kesby v Nguyen-Dang (No 2) [2009] NSWADT 310 at [169]). Considered as a whole, we are not satisfied that having regard to their content, context and or frequency, the comments could be said to be of a sexual nature.
Even if it is accepted that the comments were of a sexual nature, we are not satisfied that the reasonable person having regard to all the circumstances would have anticipated that Ms Forkin would have been offended, humiliated or intimidated by the offending comments. The reasonable person might anticipate that towards the end of her employment, Ms Forkin found the comments tiresome and repetitive, but we think it unlikely they would have anticipated that Ms Forkin would have been offended, humiliated or intimidated by those comments.

Brushing past Ms Forkin's breast

Ms Forkin claims that on one occasion, Mr Young brushed past her touching her breast. Mr Young denies that claim. For the current purposes we will assume, but not decide, that the alleged brush past occurred.
Whether brushing past a person's breast amounts to unwelcome conduct of a sexual nature, depends on the context in which the incident occurred, including any associated comments made by the perpetrator and whether objectively assessed, or as assessed by the victim, the "brush past" was accidental or deliberate. Here Ms Forkin did not elaborate about when, and in what circumstances the alleged incident occurred. Nor did she claim that at the time it occurred she believed it to be a deliberate act. Given the paucity of evidence we cannot be satisfied on the available material that the reasonable person would have anticipated that Ms Forkin would have been offended, humiliated or intimidated by the alleged conduct.

Summary

Neither the offending comments nor the "brush past" fall within the definition of sexual harassment.

The alleged sexual relationship

The absence of any independent evidence to support the competing claims made about the existence or otherwise of the alleged sexual relationship is neither remarkable nor determinative. It is a matter of common knowledge, as demonstrated by the #MeToo Movement, that the absence of corroboration is a common feature of cases involving sexual harassment. Sexual harassment is often surreptitious and does not occur in public. The victims of the harassment often experience feelings of shame and guilt and as a result are sometimes reluctant to disclose that they have been harassed. Likewise, perpetrators of the harassment have an interest in ensuring that the harassment remains secret.
That this is a case of word against word does not mean that the allegations made by Ms Forkin must fail. They must be assessed having regard to the whole of the evidence, including the credibility of the two parties.
Here each party had an interest in not advertising the alleged relationship. Mr Young was married with a young family. Likewise, Ms Forkin's claim of feeling "ashamed and dirty" about the relationship is entirely plausible. In addition, in a three-person office, based in an isolated location, there was ample opportunity for the relationship to be conducted covertly.
The email and text messages exchange between the parties in the week prior to Ms Forkin's dismissal provides some insight into the nature of the relationship between the parties. On the one hand, the absence of any hint of the alleged relationship or perhaps more significantly, Ms Forkin's alleged conduct in bringing it to an end, tends to support Mr Young's account. On the other hand, the text exchange evidences a degree of familiarity between Ms Forkin and Mr Young. Over the weekend of 18 and 19 March 2018, they exchanged multiple emails and text messages, starting early in the morning and continuing late into the evening.
Ms Forkin's claim of feeling pressured into having a sexual relationship with Mr Young is not implausible. Neither party gave their evidence in such a way that they could be said to be plainly unimpressive or unreliable witnesses. While the evidence is finely balanced, four pieces of evidence, in our view, tip the balance and lead us to conclude that Ms Forkin has failed to establish, on the balance of probabilities, that the alleged sexual relationship occurred.
First, the unconvincing explanation Ms Forkin gave for not mentioning the alleged relationship in the FWA proceedings. If, as claimed, Ms Forkin terminated the relationship and believed that to be the real reason for Mr Young's decision to terminate her employment, it seems to us improbable that she would have failed to mention that fact in the FWA proceedings or in some form of communication to Mr Young, such as a text message or email.
Even if Ms Forkin's claim is accepted that it was not until informed by her representative that she learned that the alleged conduct might amount to unlawful sexual harassment, it seems to us improbable that she would have not mentioned that she had ended the sexual relationship in circumstances where she claims to believe that was the real reason she was dismissed.
Second, the clinical note made by the GP, while supportive of Ms Forkin's claim of being sexually harassed throughout the period of her employment, is inconsistent with her claim of having had a sexual relationship with Mr Young. Not only does the note contain no mention of the alleged relationship, it expressly contradicts Ms Forkin's claim of having acquiesced to Mr Young's advances: "He tried to kiss her at work and she rejected him".
Third, for the reasons discussed above we find the explanation given by Ms Forkin for not producing the text message to be unpersuasive.
Finally, as noted, Mr Young claims that he dismissed Ms Forkin because he believed that he and Ms Forkin could no longer work together, demonstrated by her "poor response" to the offered pay increase and her alleged poor work performance. For the reason given above, we reject the latter explanation. However, viewed in the context of the email and text exchange, triggered by Ms Forkin's actions in questioning the quantum of the salary increase offered on 5 March 2018, Mr Young's claim that he found Ms Forkin's conduct to be unacceptable and petulant is entirely plausible. It is apparent that the relationship between Ms Forkin and Mr Young, whatever it was or became, disintegrated finally over pay. The tenor of that email exchange demonstrates that each party considered the position advanced by the other about the quantum of the pay increase to be unreasonable. Whether, as Mr Young apparently believed, the quantum of the pay increase was generous or, whether his decision to dismiss Ms Forkin because of her response to that offer was unfair is not to the point. The exchange corroborates Mr Young's account that his frustration with Ms Forkin's response to the offer was the primary reason he decided to dismiss her from employment. While this does not establish the truth or otherwise of the alleged 5 March 2018 email terminating the relationship, it nonetheless provides a plausible explanation for Mr Young's decision to terminate Ms Forkin's employment.
Without independent evidence from which inferences could be drawn to support one version or the other, and with her credibility undermined by significant aspects of the evidence, we are not satisfied, as claimed by Ms Forkin, that she and Mr Young had a sexual relationship which Ms Forkin terminated on 5 March 2018. It is therefore not necessary to determine whether the alleged relationship is caught by the definition of sexual harassment contained in the Act.
The complaint of sexual harassment is not substantiated.

Claim of Victimisation

Ms Forkin claims that she was terminated from employment "on the ground" that she ended the alleged relationship with Mr Young. For the reasons discussed above, we are not satisfied that the factual premise on which that allegation is based is established.
In any event, to amount to victimisation under s 50 of the Act, there must be evidence that in subjecting Ms Forkin to a detriment, here the termination of her employment, Mr Young did so on the grounds that Ms Forkin had done, or Mr Young suspected that Ms Forkin had done or intended to do, one of the following things:

brought proceedings against the discriminator or any other person under this Act;
gave evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act;
alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or otherwise done anything under or by reference to this Act in relation to the discriminator or any other person.

Ms Forkin's case is that Mr Young terminated her employment because she brought the sexual relationship to an end, not because she had done, or Mr Young thought or suspected she might do one of the things listed in s 50(1).
It follows that the allegation of victimisation is not substantiated.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 January 2020

The issues to be determined and the onus of proof

The key issues to be determined are: 1. Whether, as alleged by Ms Forkin, throughout the course of her employment Mr Young regularly made comments to her about her appearance and body type. 2. If so, whether those comments were unwelcome and "conduct of a sexual nature", in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that Ms Forkin would be offended, humiliated or intimidated. 3. Whether, as alleged by Ms Forkin, she had sexual intercourse with Mr Young on four occasions shortly before she was dismissed from employment. 4. If so, whether that "relationship" amounts to sexual harassment as defined by s 22A of the Act. 5. If the answer to Question 3 is yes, whether, as alleged by Ms Forkin, she sent Mr Young a text message on 5 March 2018 ending the sexual relationship. 6. If so, whether that message amounts to one of the actions listed in s 50(1) of the Act. 7. If so, whether the decision to terminate Ms Forkin's employment was "on the ground" that she sent Mr Young the alleged 5 March 2018 text message.
Ms Forkin bears the onus of proving that the conduct about which she complains occurred. The standard of proof is the balance of probabilities, even where, as in this case, the alleged conduct if found proven carries potentially serious consequences: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450. The majority (Mason CJ, Brennan, Deane and Gaudron JJ) went on to say at 450: On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (Footnotes omitted.)
In Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 at [56] an Appeal Panel of the one of NCAT's predecessor tribunals, the NSW Administrative Decisions Tribunal cited with approval the comments made by Branson J about the "Briginshaw standard" in Qantas Airways Limited v Gama [2008] FCAFC 69, a case involving claims of race and disability discrimination under the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth): [R]eferences to, for example, "the Briginshaw standard" or "the onerous Briginshaw test" and, in that context, to racial discrimination being a serious matter not lightly to be inferred, have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved. (Emphasis added)

Forkin v Young

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