Hunt v Rail Corporation of New South Wales [2001] FCA 614 | Case summary

REASONS FOR DECISION 1 The applicant, Ms Kimberley Hunt, was employed during the period of the complaints in the position of Manager, Train Crew Assignment Centre by the respondent. 2 The respondent, the Rail Corporation New South Wales ("RailCorp") was formed on 1 January 2004 as a result of a merger of the State Rail Authority of New South Wales and the Railway Infrastructure Corporation. 3 Ms Hunt's claims concern the alleged behaviour of several RailCorp employees, including Mr Byrne, Mr Hill, Mr Southan and Mr Reeves. 4 Ms Hunt made nine complaints to the Anti-Discrimination Board about incidents that occurred in the course of her employment at RailCorp which she alleged amounted to various breaches of the Anti-Discrimination Act 1977. These matters were joined and dealt with together. The complaints cover the periods from 4 February 2004 to 13 December 2004, 4 January 2005 to 11 April 2005, 1 June 2005 to 18 November 2005 and 6 March 2006 to 13 April 2006. 5 They constituted: a) Complaints of sex discrimination in employment, sexual harassment, victimisation and aiding and abetting lodged on: i) 1 September 2004 ii) 13 December 2004 iii) 3 March 2005 iv) 10 March 2005 v) 11 April 2005 b) Complaints of sex discrimination, sexual harassment and victimisation in employment lodged on: i) 4 November 2005 ii) 12 November 2005 iii) 6 March 2006 iv) 13 April 2006 The Applicant's Complaints 6 Ms Hunt was employed by the Railway Commission of New South Wales in July 1988. In July 2000, she was appointed to the position of Manager, Train Crew Assignment Centre. She was the first woman to be appointed to the position. She developed particular expertise in change management. When she came in to the Train Crew Assignment Centre she was expected to make some staffing changes which she understood would make her unpopular. 7 On 23 June 2003 Ms Hunt made a formal complaint to Wayne Williamson, Human Resources and Operations Manager regarding the behaviour of another staff member, Mr Rathinam. She claimed that Mr Rathinam had undertaken a letter writing campaign and posted notices on notice boards that she felt were harassing and constituted discrimination. She made further complaints on 26 June 2003, 8 July 2003 and 19 August 2003. On 14 August 2003 Ms Hunt took the step of engaging solicitors to write to Mr Rathinam personally about his behaviour towards her. RailCorp did not write to Mr Rathinam until November 2003 about his behaviour. The Meeting of 4 February 2004 8 On 4 February 2004, Ms Hunt, and another female RailCorp employee, Ms Wall, attended a meeting with Mr Hill, the General Manger of Crew Training, to raise concerns that their supervisor, Mr Byrne, had shown more support for male employees than for female employees and to criticise the manner in which he had handled the investigation of the complaints made by Ms Hunt about Mr Rathinam. In particular, Ms Hunt expressed her dissatisfaction with the way in which Mr Byrne had dealt with her concerns. She claimed that Mr Byrne, by not dealing with her complaints, made her feel victimised because she was not supported in her responsibilities as a manager after the complaint had been made. Ms Hunt also raised her concerns that Mr Byrne and Mr Rathiman had a personal relationship that had clouded Mr Byrne's ability to deal with her complaints objectively. She also complained that she had not been given appropriate performance reviews and related increases in remuneration for over two years. 9 Ms Wall gave evidence that she supported Ms Hunt in her claims and also felt that Mr Byrne was more supportive of male employees than female employees. 10 Mr Byrne, the Crew Operations Manager and Ms Hunt's supervisor, gave evidence that he was not aware that the meeting was going to discuss concerns about his management style and was only aware of the complaints by Ms Hunt and Ms Wall just prior to the meeting. He said that he felt "ambushed" by the claims. Mr Byrne denied that he treated male staff differently to female staff. 11 Mr Hill, the General Manager of the Train Crew Assignment Centre, gave evidence that he believed that the purpose of the meeting was to mediate the grievances raised by Ms Hunt and Ms Wall about Mr Byrne. 12 On 10 February 2004, Mr Hill convened another meeting at which he provided his recommendations about the matters raised by Ms Hunt and Ms Wall about Mr Byrne. Mr Hill believed that the relationship between Ms Hunt and Mr Rathinam had broken down. He found that there had been a loss of confidence between the Ms Hunt and Mr Byrne. Mr Hill formed the view that actions taken by Mr Byrne had been appropriate but that it would be preferable for him to minimise his social contact with Mr Rathinam. 13 Mr Hill recommended that Ms Hunt's skills as an effective change agent could be better utilised in an environment that required change and suggested that Ms Hunt should be moved to another position in RailCorp. Mr Hill denied that the suggestion of a new position for Ms Hunt was a form of victimisation and submitted that he was only providing her with other opportunities, noting that they did not insist that Ms Hunt move from her position as Manager of the Train Crew Assignment Centre when she advised she was not interested in another position. Mr Hill denied that he decided that Ms Hunt should be moved to another position but said he sought to find practical ways of dealing with the dispute. 14 Ms Hunt said she saw the alternative roles as a punishment and would only move if it were a promotion. Ms Hunt further noted that Mr Hill made no recommendations in relation to moving Mr Byrne. Ms Hunt pointed out that she was a permanent employee and Mr Byrne was a temporary employee. 15 Ms King gave evidence that she was asked by Mr Hill in February 2004 if there was a position for Ms Hunt. Ms King identified a position as a project manager for the development of depot operators and the re-allocation of staff across depots as suitable, given Ms Hunt's experience as a change manager. Ms King spoke with Ms Hunt about the position and Ms Hunt expressed her view that any new position she moved to would have to be at a higher level than her current one and Ms Hunt did not take up the position. 16 On 26 February 2004, Ms Hunt was offered another position. She declined the position because she believed it had less responsibility than her current position and that she felt she was being punished for making the complaint about Mr Byrne. The position was not a permanent position. 17 Mr Hill further directed as a result of the 4 February meeting that a performance agreement with Ms Hunt be prepared within two weeks of the meeting. RailCorp argued that, while conceding that Ms Hunt's performance review was not undertaken, no performance reviews were done on any staff during that period and Mr Byrne gave evidence that he did not believe that there was a performance review due during the time he supervised Ms Hunt. 18 Mr Byrne explained that he did not undertake a performance review on any of the staff he managed while he was at RailCorp because they had been done in the months before he arrived and he left before it was necessary to do them again. He left RailCorp on 16 April 2004. Ms King became Ms Hunt's direct supervisor from that period until September 2004 when Mr Cowan moved into the position. 19 Mr Cowan completed a performance development assessment with Ms Hunt that covered the period from 16 August 2004 to 28 February 2005. It was referred to Mr Hill on 24 March 2005 because Ms Hunt did not agree with the assessment. Mr Cowan gave evidence that he had graded Ms Hunt above average for her performance but had identified the need for her to focus on her management of people. 20 Some evidence was given by RailCorp staff to imply that the undertaking of a performance review could be seen as a negative thing but this approach did not seem to correlate with the view expressed by other RailCorp staff such as Mr Byrne who understood that the conducting of a performance review was linked to remuneration increases. 21 The minutes of the meeting were not kept confidential and Ms Hunt claims that the failure to keep them confidential led to her authority in her position being undermined and made it more difficult to retain her position. She claimed that the failure to keep the minutes confidential amounted to victimisation. The First Graffiti Incident 22 On 31 May 2004, graffiti was found in the men's toilets at the Train Crew Assignment Centre that read: "Slut face Kim Hunt who has she fucked all of my cocks she is getting licked out by her baby sitting that dum black cunt running the show". While the photographic evidence given to the Tribunal was not clear, Ms Hunt gave evidence of the content of the graffiti and her evidence was not contested. On 1 June 2004, Ms Hunt made a complaint about this incident to the Workplace Conduct Unit and Ms Hunt identified the person she believed was responsible for the graffiti as Mr Southan. 23 Ms O'Sullivan, the former Manager of the Workplace Conduct Unit, gave evidence that refuted Ms Hunt's claims that the investigations into the graffiti were not handled in a timely manner. She said the matter was referred by her to Mr Mills for investigation on 2 June 2003. Second Graffiti Incident 24 On 9 July 2004, more graffiti was found in the men's toilets at the Train Crew Assignment Centre that denigrated Ms Hunt and her husband, who was also an employee at RailCorp. It said "Kim Hunt fucks her husband's arse. Is he Mike Hunt?", "Kim Hunt (whore) fucks her husband's arse with her vibrator. Fucking Cunt" and "Him Kunt and Kim Hunt" with an arrow indicating the "K" should replace the "H". Ms Hunt made a further complaint to the Workplace Conduct Unit and again identified the person she believed was responsible for the graffiti as Mr Southan, a Crew Assignment Officer who reported to Ms Hunt. 25 On 29 July 2004 the Investigators Report was delivered. Mr Mills' report of the investigations found that there was limited evidence available and that attempts had been made to narrow or identify possible perpetrators but it was unable to. He referred to the FDS report by Dr Strach dated 23 July 2004 and its conclusions about the source of the handwriting. 26 The FDS report on the investigation into the graffiti did not identify the person responsible but indicated that it was possible that Mr Southan was the author of some of the graffiti but not of all of it. 27 Ms O'Sullivan gave evidence that, given the independent findings of the investigation that it was not appropriate to interview Mr Southan, even though Ms Hunt had suspected him as the source. 28 RailCorp relied upon the findings of that report to conclude that no further action could be taken in relation to the incidents. It was argued that RailCorp's engaging of Forensic Document Services to undertake an investigation and provide a report into the source of the graffiti showed that it did take the incident seriously and that all reasonable steps were taken to investigate the graffiti incidents. The Complaints by Mr Southan against Ms Hunt 29 On 19 August 2004, Mr Southan made a complaint about Ms Hunt that related to her management style. Ms Hunt claims that over a period from May 2002 to May 2004 she had at least four discussions with Mr Southan about his work performance and that her relationship with him had deteriorated over that time. 30 Mr Hill, the General Manager of TCAC, convened a meeting on 26 August 2004 to address the matters raised by Mr Southan. Ms Hunt requested that the issue of the graffiti be raised at that time. 31 Ms Hunt gave evidence that before the meeting began, Mr Hill said to her: "He doesn't look like the sort of person who would write that graffiti." 32 Mr Hill confirmed that he made this observation. 33 Ms Hunt also asserted that during the meeting Mr Panigiris, Mr Southan's union representative, asked him if he wrote the graffiti and that Mr Southan denied that he had done so. According to Ms Hunt, Mr Hill did not question Mr Southan about the graffiti but asked: "You didn't write that graffiti then." 34 Mr Hill contested this version of events in his evidence. He said that he asked Mr Southan directly: Mr Hill: "Did you write the graffiti? Mr Southan: "No" 35 Ms Potapof gave evidence that Mr Hill did ask Mr Southan about the graffiti but that the meeting was primarily about Mr Southan's complaints about Ms Hunt's management style. 36 Ms Hunt gave evidence that she felt that her complaints had been pre-judged and had not gone through the proper processes. She also believed that the complaints made by Mr Southan about her were for the purposes of harassing her. 37 On 8 October 2004, Mr Southan, with fellow employee Mr Reeves, made a further complaint about Ms Hunt. She claims that the complaints were false and only made for the purpose of harassing her. Ms Hunt claimed that Mr Reeves' complaint was dealt with seriously and promptly and that Mr Reeves would not have engaged in this behaviour if she had been male. 38 Mr Southan gave evidence of his relationship with Ms Hunt. He denied that he made complaints about Ms Hunt to harass her. He also denied that he would not have made the complaints had Ms Hunt been a man. Further Attempts to Move Ms Hunt 39 Ms Potapof, the General Manager of Human Resources and Industrial Relations for the Train Services Group, gave evidence that during the period of February to September 2004, Ms Hunt indicated to her that she did not feel supported by senior management in any respect and she even sometimes called her after work hours. As a result of those discussions, RailCorp considered options it could offer to Ms Hunt to address the concerns that she had raised, which included the option of moving her out of the Train Crew Assignment Centre and into another position. It also included advising the Train Crew Assignment Centre staff and train crew about inappropriate behaviour. 40 Ms Hunt said that she consistently made it clear that she did not want to move from her substantive position. She gave evidence that she raised concerns about the attempts to move her in conversations with Ms Potapof and Ms Simons. 41 On 9 September 2004, a meeting was held with Ms Potapof, Ms Hunt and Ms Simons and a union representative to discuss what had been happening to Ms Hunt over time and to look at a way forward. Prior to the meeting, Ms Hunt had been forwarded a position description in Passenger Fleet Maintenance at the same salary level. Ms Simons wrote to Ms Hunt on 14 September 2004 asking her to consider whether she would like to stay in her current position or consider new opportunities. In correspondence, Ms Hunt expressed her concerns that she felt that she was being moved from her position. Ms Potapof repeatedly responded that the position was just an option and there was no intention to forcibly move Ms Hunt. 42 Ms Potapof gave evidence that the intention was to offer Ms Hunt the move as a way of alleviating the stress she was under and it was an acknowledgement that the culture within the Train Crew Assignment Centre could not be changed quickly. She gave evidence that, while the positions offered to Ms Hunt were not permanent, there would be a merit based appointment process that Ms Hunt would have to go through and that if she were unsuccessful, she would be on an unattached list but still employed by RailCorp. The Talk Back Radio Incident 43 On 27 and 28 September 2004, a talkback radio host made comments on air as a result of receiving documentation from RailCorp. He named Ms Hunt specifically. There was no evidence before the Tribunal of the content of the on air comments only that they were derogatory and were heard by Train Crew Assignment Centre staff. 44 Mr Masters, a Team Leader at the Train Crew Assignment Centre, gave evidence that staff were listening to the radio at the time the comments were made and some staff started laughing at them. 45 Ms Hunt gave evidence that she was humiliated by these on-air comments. She submitted that this was a form of harassment and that it would not have occurred if she were male. She claimed that no investigation was made into the source of the leaked documents nor were any steps taken by RailCorp to counsel staff about the incident. 46 29 September 2004, Mr Hill called a meeting in relation to the radio broadcast. Mr Hill gave evidence that the consensus at the meeting was that, if the information had been given to the radio station by a non-employee, RailCorp was limited in what it could do to pursue the matter. Mr Hill made inquiries with Mr Graham, the CEO of RailCorp and legal staff about what could be done about the matter. A further meeting about this issue was held on 25 October 2004 and included Ms Panagiris, Mr Reeves, Mr Cowan and Ms Hunt. The Appointment of Mr Setterini 47 On 16 December 2004, Ms Hunt became aware that a Mr Setterini would be joining the Train Crew Assignment Centre. Ms Hunt made inquiries with Human Resources about his role, expressed concerns that she had not been consulted about his appointment and stated that she considered it to be another attempt to pressure her to accept another position. She did not receive a response to her queries. She alleged that Mr Setterini was appointed at a higher level of remuneration than herself and she claimed that this amounted to a form of discrimination against her. 48 Mr Hill gave evidence that Mr Setterini was not engaged to replace Ms Hunt but placed at the Train Crew Assignment Centre in order to undertake a review. He undertook the review from 4 to 26 January 2005. 49 Mr Setterini was brought in to do this work at a time when Ms Hunt had been scheduled to take annual leave. She subsequently cancelled that so that she could be present to provide input and observe the process. Ms Hunt gave evidence that she was not consulted as part of the review by Mr Setterini even though she was the manager. She claimed that the review was a further mechanism used to pressure her to accept another position. 50 Mr Setterini gave evidence that he was only engaged to look at operational issues with no suggestion ever made to him that he should replace Ms Hunt in her position as manager. Evidence was put before the Tribunal that showed that Mr Setterini was on a higher salary before he was sent to do the review to explain why he may have earned more. Other evidence suggested a further reason as to why Mr Setterini was paid more than Ms Hunt, namely that he was doing a different job and had a different level of expertise. 51 Mr Setterini also gave evidence that he did not undertake any of Ms Hunt's duties while he was in the unit except on one occasion when there was a severe staff shortage and Ms Hunt asked for his assistance. He denied that he told anyone that he would be starting work permanently and it was clear to him at all times that he was only in the Train Crew Assignment Centre for the purpose of undertaking the review. 52 Mr Hill and Mr Cowan supported Mr Setterini's version of events and stated that there was never any intention for him to remain in the Train Crew Assignment Centre once his review was completed. Pornographic Magazine Incident 53 On 3 February 2005, Ms Hunt returned to her office in the afternoon to find an intra-office envelope containing a pornographic magazine under the door with her name written on the front. Ms Hunt gave evidence that she was upset and showed the envelope to Mr Masters, a Team Leader at the Train Crew Assignment Centre. 54 Ms Hunt and Mr Masters attended a meeting at 6pm that evening and approached a group of people that included Mr Greenhill, Manager, Industrial Relations, Mr Dalton, Mr Cowan, Ms Buvet and Mr Williamson before the meeting commenced. They were standing outside the room. Ms Hunt said she gave the envelope with the magazine inside it to Mr Greenhill, the Manager of Industrial Relations at RailCorp. Ms Hunt gave evidence that a conversation took place to the following effect: Ms Hunt: "This is what I have to put up with on a daily basis." Mr Greenhill: "What a waste of money. Maybe we can keep this once it's all over." Mr Greenhill and Mr Dalton were observed to laugh. Mr Greenhill: "I will take this to Fran Simons. It needs investigating." 55 She said Mr Greenhill took the magazine with him and some time later that day returned it to her. Ms Hunt understood that the matter was being investigated. 56 Ms Hunt's and Mr Masters' version of events was contested by others who were in attendance. 57 Mr Greenhill denied the comments. He denied that he had said "What a waste of money. Maybe we can keep this once it's all over." He also denied that he and Mr Dalton laughed at the incident. Mr Greenhill stated that he had instructed Ms Hunt to refer the matter to the Workplace Conduct Unit for investigation. He gave evidence that he spoke to Ms Simons the following day to advise her of the incident and that he had advised Ms Hunt to lodge a complaint. 58 Mr Williamson, Human Resources Service Manager, Train Services, gave evidence that he saw Mr Greenhill handed the envelope back to Ms Hunt. He also supported Ms Hunt's version of events to the extent that he recalled Mr Greenhill saying words to the effect that perhaps he could keep the magazine afterwards. 59 Mr Dalton denied that Mr Greenhill made a comment about keeping the magazine after the investigation was over and also denied that he laughed. 60 Ms Buvet, an Acting Industrial Officer, said that it was Mr Masters who said to Mr Dalton: "Can I have it after?" "What a waste of money." 61 On 7 February 2005, Ms Hunt emailed Mr Cowan, Mr Potapof and Mr Hill inquiring about the investigation and indicating that she still had the magazine in her possession. 62 Mr Williamson gave evidence that on 25 February 2005, he asked Ms Hunt to give him the magazine and envelope so that the matter could be investigated. Ms Hunt advised that she still had the magazine but had not kept the envelope. She delivered the magazine to him that day. The matter was referred to the Workplace Conduct Unit on 28 February 2005. 63 On 3 March 2005, Mr Hirsch, an investigator in the Workplace Conduct Unit, began his investigation into the magazine incident. He interviewed Ms Hunt on 4 March 2005. He finalised his investigation on 11 April 2005 and concluded that he was unable to identify the person who placed the magazine under Ms Hunt's door. Mr Hirsch gave evidence that the person who placed the magazine under the door could not be identified and there was no evidence regarding how the magazine was left under the door. He gave further evidence that the investigation was limited by the fact that Ms Hunt had disposed of the internal mail envelope in which the magazine arrived. He also noted that he that the investigation was delayed due to the lack of availability of relevant Train Crew Assignment Centre staff whom he needed to interview. He gave further evidence that, with his experience of investigations, he believed that the delay in commencing the investigation did not impact on the outcome. 64 Ms Hunt submitted that the investigation was not carried out in a timely manner, citing that it had taken place approximately one month after the incident occurred. She further stated that it was unfair to imply that she should have done more to expedite it since it was RailCorp's responsibility to ensure that the investigation was undertaken properly and promptly. She also asserted that the investigation, which was undertaken by Mr Hirsch, was not thorough, indicating that there were other staff members who might have been able to shed some light on the matter. The Third Graffiti Incident 65 On 4 March 2005, more graffiti appeared on the wall of the mens toilet at the Train Crew Assignment Centre. The graffiti was again derogatory to Ms Hunt and her husband and was sexual in nature. She contends that it said: "Kim Hunt fucks her husband's arse. Is he Mike Hunt?" 66 Ms Hunt made a complaint to the Workplace Conduct Unit about the graffiti. This time she did not identify Mr Southan but did not exclude him, expressing the view a Train Crew Assignment Centre employee was responsible. 67 On 8 March, the graffiti incident of 4 March 2005 was referred to Mr Hirsch of the Workplace Conduct Unit for investigation. Mr Hirsch inspected the premises where the graffiti had appeared and conducted interviews as part of the investigation. 68 On 15, 16, 17, 23 and 29 March 2005, according to RailCorp, all Train Crew Assignment Centre staff attended workplace educational sessions to reinforce workplace standards and acceptable workplace behaviour and that these sessions included discussion about graffiti, issues related to the code of conduct and anti-discrimination and harassment policies. The Fourth Graffiti Incident 69 On 21 March 2005, there was another incident where graffiti disparaging of Ms Hunt was found in the women's toilets at the Train Crew Assignment Centre premises, this time in the women's toilets. It was not clear from the evidence what the graffiti said. 70 The matter was referred to Mr Hirsch for investigation on the same day. He made further investigations in the form of visiting the premises and interviewing staff. A forensic handwriting expert was also engaged but could not provide assistance because there were no suspects with whose handwriting samples the graffiti could be compared. 71 Mr Hirsch found it impossible to identify everyone who had been in the vicinity and on 7 April 2005 concluded his investigation. He made recommendations that included applying or reapplying anti-graffiti paint in the toilets, implementing a swipe card system in the toilets and conducting workplace educational sessions to reinforce compliance with the code of conduct, especially in relation to discrimination and harassment. 72 From 23 June 2005, team leaders at Train Crew Assignment Centre commenced frequent inspections of toilet facilities to check for graffiti, recording the inspection details in a log book. The Fifth Graffiti Incident 73 On 13 September 2005, there was another incident in which graffiti appeared on the wall of the mens toilets in the Train Crew Assignment Centre. It said: "Kim Slut Cunt Hunt." 74 On 19 September 2005, Mr Cowan recommended to Mr Hill the installation of closed circuit television near the entrance to the toilets. He also informed Mr Patterson of the further incident of graffiti so that he could also include it in his investigation. 75 Mr Patterson became the Manager, Workplace Conduct Unit, on 5 September 2005. He first became involved in the investigations on 16 September 2005. He had an extensive background in investigations when he came to work in the unit. He impressed the Tribunal with both his credibility and knowledge. 76 On 21 September 2005 Mr Patterson, Mr Cowan and Ms Hill met to discuss further strategies for dealing with the graffiti. During that meeting, Mr Hill asked Mr Patterson to hold off the investigation for a moment so that he could explore a couple of management initiatives. It was Mr Patterson's understanding that he would be contacted if the investigation was to proceed. As a result of the misunderstanding, the investigation was delayed. Mr Patterson then developed a protocol to the effect that any matters from Train Crewing requiring investigation should be referred only by Mr Cowan, to ensure no other miscommunications would occur. 77 Mr Hill followed up on the issue of the closed circuit television as evidenced by e-mail correspondence on 30 September, 12 and 13 October 2205. 78 On 25 October 2005, Ms Hunt sent an email to Mr Cowan and Mr Hill advising that she had been told that there was to be no investigation into the further incident of graffiti on 13 September 2005. 79 Mr Patterson gave evidence that there was a miscommunication between Mr Hill and himself about who would investigate the matter. Once that was clarified in an email on 25 October 2005, Mr Patterson investigated the matter. On 7 November 2007, he engaged Kamira Stacey to investigate. Their report was received on 22 March 2006. 80 In November 2005, closed circuit television installed at the stairs near the toilets was used to record people using the bathrooms. Mr Masters, a Team Leader at the Train Crew Assignment Centre, gave evidence that staff were not trained on how to work the system or burn DVDs from it. The Sixth Graffiti Incident 81 On 16 February 2006, a further instance of graffiti occurred on the Train Crew Assignment Centre premises, this time in the women's toilets. It said "Kim Hunt Bitch Face". 82 On 10 March 2006, Mr Cowan made inquiries about the closed circuit television coverage of the area to assist in the investigation of the incident but he was informed that the relevant footage could not be retrieved and was lost. The Incident with Mr Irving 83 On 6 March 2006, Ms Hunt was accosted by another RailCorp employee, Mr Irving, who was under the influence of alcohol. He attended the Train Crew Assignment Centre premises and behaved in an aggressive and threatening manner towards her. 84 Ms Hunt feared for her physical safety and she expressed her fear in an e-mail to Mr Cowan. 85 RailCorp indicated that, as a result of the incident, Mr Irving was relocated away from the Train Crew Assignment Centre premises. 86 On 20 March 2006, Ms Hunt sent another email to Mr Cowan following up on her email of 6 March. Direction to move to Lee Street premises 87 Ms Hunt claimed that on 22 March 2006, she was asked by Mr Cowan to attend a management meeting. Mr Williamson the Human Resources Services Manager was in attendance and asked Ms Hunt about her absences from work over the previous two years. 88 Mr Cowan contested Ms Hunt's account but both gave evidence that Ms Hunt was told she would have to move to the RailCorp building in Lee Street. 89 Ms Hunt expressed her concern that Mr Irving, Mr Southan and Mr Hill were all at that address. 90 Mr Cowan gave evidence that he believed the move was a way of protecting Ms Hunt because she would be closer to him. He also gave evidence that he had been upset during the meeting by Ms Hunt's allegations that she had not been supported. It was Mr Cowan's belief that a great deal had been done to support her. He gave evidence that he was dealing with matters relating to Ms Hunt on average twice a day. Mr Cowan also gave evidence that Ms Hunt's refusal to move after she had raised concerns about her safety and the on-going matters of graffiti had frustrated him and he raised the issue with Mr Hill. 91 At another meeting on 28 March 2006 between Mr Cowan, Mr Masters, Mr Williamson and Ms Hunt, Ms Hunt was informed that she would be required to move to Lee Street the following day and she reiterated her concerns about her safety. Despite expressing those concerns, Ms Hunt was directed to move. 92 Mr Cowan, who presented as credible and balanced witness when giving his evidence to the Tribunal, gave evidence that after the meeting he further considered the direction to relocate Ms Hunt to Lee St in light of her concerns but concluded that it was still the right thing to do. Mr Cowan had considered that, with the new arrangement, Mr Southan would be 50 metres away from Ms Hunt and he would seek to avoid her. Mr Irving was a similar distance away and on the opposite side of the building which was separated by the central spine of the building. He considered Mr Irving would have no reason to come to the side of the building where Ms Hunt would be. There were two sets of amenities so Ms Hunt could be assigned one and Mr Southan and Mr Irving could be assigned the others. Mr Cowan had arranged for his Personal Assistant to accompany Ms Hunt to the amenities should she feel uncomfortable. Mr Cowan also gave evidence that he thought that the issues between Ms Hunt and Mr Irving and Mr Southan had been properly dealt with even though Ms Hunt was not satisfied with the outcome. He denied the move was designed to victimise Ms Hunt and asserted it was designed to address her concerns about her safety. 93 On 29 March 2006, Mr Cowan confirmed the direction in writing to Ms Hunt. 94 After the meeting of 28 March 2006, Ms Hunt went on stress leave and had not returned to work at the time of the hearing. Hostile Work Environment 95 Ms Hunt asserted that she found herself in a hostile work environment that was created by the cumulative effect of the incidents of graffiti that targeted her personally, the failure of management to deal with her complaints in a timely manner, the failure of management to conduct her performance review, the incident with the pornographic magazine, the talkback radio incident and the continual pressure on her to move to another position outside of the Train Crew Assignment Centre. 96 There is no doubt that Ms Hunt genuinely felt that the atmosphere within the workplace was stressful and that she felt that she was unfairly targeted and targeted because she was a woman. 97 However, other evidence was presented to the Tribunal that showed that the general view of management was that there were serious staffing issues within the Train Crew Assignment Centre that related to the way in which the unit was managed and the tensions between staff. 98 It was Mr Byrne's evidence that there were organisational issues in the Train Crew Assignment Centre and that the staff were in factions that created conflict in the workplace. It was his view, having managed the unit for a period, that staff members were entrenched in their views and that management was not effective at dealing with this. Mr Byrne also gave evidence that there was conflict between Ms Hunt and staff about her management style but that no action was taken to overcome these problems and that he wasn't aware of any training programs being offered to her in this regard. 99 He gave evidence that no strategies were put in place to assist Ms Hunt with her difficulties in managing people and Mr Hill, the General Manager of the Train Crewing, confirmed that this was the case. 100 Mr Hill confirmed the view that there were factions in the Train Crew Assignment Centre that gave rise to management issues. 101 Mr Masters gave evidence that he was informed by Ms Hunt when he commenced work in the Train Crew Assignment Centre that the environment included difficult employees that were hard to manage. 102 Ms Hunt had three supervisors through the period from 4 February 2004 until she went on stress leave and none of them had identified her deficiencies as a manager in the manner subsequently raised at the hearing. 103 Ms Potapof, the General Manager of Human Resources and Industrial Relations at the Train Services Group gave evidence that, in her opinion, Ms Hunt was given support. Ms Potapof said that she had tried herself to act as a support for Ms Hunt and give her a senior person within the organisation that Ms Hunt could talk to and that she would even discuss Ms Hunt's concerns with her after hours. She said that there was a difference between what Ms Hunt felt she needed and what RailCorp was able to provide. She also gave evidence of the continual correspondence between Ms Hunt and herself and with other RailCorp staff concerning the investigations into the various incidents of graffiti that targeted Ms Hunt. Ms Potapof considered that, when a person implements a change management process they are likely to become unpopular with staff. Ms Potapof also conceded that, despite the steps taken to prevent the graffiti, it still recurred. Even when the anti-graffiti paint was applied to the wall, the graffiti was carved into it. 104 On the basis of the evidence presented to it, the Tribunal draws the conclusion that the oppressive and dysfunctional nature of the workplace was a result of the management, organisational and staffing issues that existed in the Train Crew Assignment Centre. In this environment, it is understandable that Ms Hunt felt that she was being targeted. However, the evidence showed that the environment was such that other staff members were equally unhappy and frustrated in the work environment. The Claims of Sexual Harassment 105 Section 22B(2) of the Anti Discrimination Act 1977 (NSW) states that it is "unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer." Section 22B(6) of the Anti Discrimination Act 1977 (NSW) makes it unlawful for "a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons." 106 Sexual harassment is defined in s.22A of the Anti Discrimination Act 197): For the purposes of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. 107 The test for whether sexual harassment has occurred is an objective one and is determined by whether a reasonable person would consider that the conduct in question would be likely to offend, humiliate or intimidate. Caton v Richmond Club Limited [2003] NSWADT 202, O'Callaghan v Loder & Anor (No. 2) [1983] 3 NSWLR 89, Webb v Newcastle Hire Cars Pty Ltd [2004] NSWADT 142. 108 Ms Hunt raised various claims that related to sexual harassment, in particular the continual instances of graffiti that targeted her, the incident in which a pornographic magazine was placed under her office door, comments made on talkback radio about her and the complaints made against her by Mr Southan and Mr Reece which Ms Hunt believed to be false. a. The Six Incidents of Graffiti 109 The nature of the graffiti that targeted Ms Hunt was, by an objective standard, offensive. It contained derogatory language that was designed to humiliate. 110 However, the definition of sexual harassment requires that the conduct be sexual in nature. While some of the instances of graffiti did not include comments that could be perceived as sexual in nature, other incidents not only included graphic descriptions of sexual acts but also included a term that is a colloquial way of referring to female genitalia and was of a sexual nature. The early incidents were particularly graphic and of a highly offensive sexualised nature. 111 Findings about the graffiti are complicated by the nature of the evidence placed before the Tribunal in relation to the six incidents complained of by Ms Hunt. There was conflicting evidence about what was written and when. Photographs that were produced to prove the existence and content of the graffiti were presented in the form of black and white photocopies that were often illegible. Ms Hunt pointed out that RailCorp, who had investigated the matter, should have been in a better position to provide clearer photographic evidence but this was not done. However, the Tribunal can draw the inference that the graffiti did occur and that it was in the form of words that Ms Hunt describes and on the dates she alleges. This is supported by the fact that there was an investigation into each incident. 112 Relying on this evidence and these inferences, the Tribunal notes that only some of the incidents were of a sexual nature. Specifically, the first, second, third and fifth instances (on the 31 May 2004, 9 July 2004, 4 March 2004 and 13 September 2005 respectively) were clearly sexual in nature. However, there was no clear evidence about the content of the graffiti on the fourth instance (21 March 2004). The sixth incidence (16 February 2006) was not sexual in nature. 113 The Tribunal having determined that four of the six instances of graffiti were sexual in nature, the next question for the Tribunal is whether graffiti can constitute a form of sexual harassment. The definition in s.22A of the Act requires that the acts that constitute sexual harassment involve the commission of "unwelcome conduct of a sexual nature in relation to the other person". The requirement that the conduct be done "to the other person", according to RailCorp's submissions, could be said to imply that there must be a physical connection between the conduct and the person who is the alleged victim of the sexual harassment. 114 Sexual harassment can be perpetrated through the engagement of a wide range of behaviours, including touching and verbal comments. Hooper v Mt Isa Mines Ltd (1997) EOC ¶93-879. Just as verbal comments can constitute a form of conduct that can constitute harassment, so too can written words, including in the form of graffiti. 115 The statutory requirement that the conduct constituting sexual harassment must be done "in relation to the other person" also raises the question as to whether the fact that the graffiti was written in the male toilets, a place that Ms Hunt would be assumed not to frequent, means that the conduct was not done "in relation to the other person." RailCorp submitted that this meant that the conduct that amounts to sexual harassment must have some connection to the applicant. Kennedy v ADI Ltd [2001] FCA 614. Carter v Linuki Pty Ltd (trading as Aussie Hire & Fitzgerald) [2005] NSWADTAP 40. 116 The Tribunal finds that, although the graffiti was written in the male toilets, its purpose was to humiliate and harass Ms Hunt by creating an environment in which male staff would see the graffiti that demeaned Ms Hunt. The Tribunal also finds that the person or persons responsible for the graffiti would have expected that, given the nature of the antagonistic environment in the workplace, Ms Hunt would eventually be made aware of its existence and would therefore be affected the same way she would have had the graffiti been written in a more public space. 117 Specifically, the first, second, third and fifth instances (on the 31 May 2004, 9 July 2004, 4 March 2004 and 13 September 2005 respectively) of graffiti cumulatively had the effect of amounting to sexual harassment of Ms Hunt. It constituted a clear and continuing pattern of behaviour that, targeting Ms Hunt, clearly led to her being humiliated and denigrated. 118 Ms Hunt gave evidence that she had clearly identified who she thought had written the graphic and repulsive graffiti in the men's toilet and expressed her frustration that the person she had suspected was not better investigated. RailCorp conducted as series of investigations into the graffiti in an attempt to identify the perpetrators, even engaging forensic handwriting experts. None of the investigations undertaken by RailCorp into the incidents of graffiti were able to identify the person or persons responsible. 119 There is no evidence before the Tribunal that allows it to draw the same conclusion about the source of the graffiti that Ms Hunt came to but it is open to the Tribunal to determine that it was highly probable that the person or persons responsible for the graffiti were employees of RailCorp. In the light of this, the issue of whether RailCorp is vicariously liable for the actions of its employees in relation to the recurring incidents of graffiti targeting Ms Hunt is raised. b. The Incident with the Pornographic Magazine 120 Ms Hunt was subject to an incident where a pornographic magazine was placed under the door to her office. 121 Ms Hunt also alleged that, when she sought to raise the incident with RailCorp staff, they made inappropriate remarks and laughed, adding to her humiliation. 122 It has long been established that exposure to pornographic images in the workplace can constitute a form of sexual harassment. Hooper v Mt Isa Mines Ltd (1997) EOC ¶93-879. The placing of the magazine under Ms Hunt's door was conduct that amounted to sexual harassment. 123 However, there was conflicting evidence about the conversation that Ms Hunt claimed took place when she first raised the incident. The witnesses give conflicting accounts of the conversation and this makes it difficult for the Tribunal to ascertain the exact version of events. 124 When conflicting evidence is presented to the Tribunal and the witnesses who give differing versions of events are found equally credible, the Tribunal must have mind to the burden of proof that rests with the complainant, in this case Ms Hunt. 125 In order to satisfy the Tribunal that a breach of the Anti Discrimination Act 1977 has occurred, Ms Hunt carries the burden of proof to the standard of the balance of probabilities, as per. s140 of the Evidence Act 1995. This standard was restated in Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 as being, in all civil cases, a requirement that the standard of proof to be met by the applicant is on the balance of probabilities. 126 The Briginshaw standard, as set out in Briginshaw v Briginshaw (1938) 60 CLR 336, is considered appropriate when a serious allegation is being made in civil proceedings, which might lead to a finding on what could amount to criminal conduct. But " 'due regard must be had to the nature of the issue involved' because not every case involves issues of importance and gravity in the Briginshaw sense", as per Dutt v Central Coast Area Health Service [2002] NSWADT 133. 127 Applying the onus for the burden of proof, the Tribunal, in light of the conflicting evidence, is unable to find that the conversation occurred in the manner that Ms Hunt alleges and cannot conclude that RailCorp staff laughed at the incident. 128 Although an investigation into this incident undertaken by RailCorp, they were unable to determine who had put the magazine under Ms Hunt's door. It is, however, open to the Tribunal to find that it was highly probable that the person who engaged in this conduct was an employee of RailCorp and the issue again arises as to whether RailCorp is liable for the conduct. c. The Talkback Radio Incident 129 Ms Hunt complained that the incident in which she was the subject of disparaging comments on a talkback radio station on 27 and 28 September 2004 was a form of sexual harassment to which she was subjected. 130 Evidence was placed before the Tribunal that RailCorp staff did hear the broadcast and were observed to be laughing at the comments made about Ms Hunt. Evidence was also presented that attested to Ms Hunt's distress about the remarks. However, there was little evidence placed before the Tribunal about the content of the remarks. While it is clear that the behaviour was felt to be a form of harassment by Ms Hunt, without clearer evidence of the content of the on-air comments, it is difficult to ascertain the nature of the remarks for the purpose of deciding whether the remarks amounted to sexual harassment as defined by the Anti-Discrimination Act 1077 and to the level of proof required. d. The Complaints by Mr Southan and Mr Reece 131 Ms Hunt alleges that complaints made about her management of the Train Crew Assignment Centre by Mr Southan and Mr Reece were false and made with the key purpose of harassing her. 132 RailCorp investigated the complaints made against Ms Hunt and found that they were without substance. That the complaints were not proven is not prima facie evidence that the complaints were not made in good faith. 133 Because of the amount of evidence placed before the Tribunal that clearly showed that it was a dysfunctional work environment, the Tribunal could not draw the conclusion that the complaints by Mr Southan and Mr Reece were made for the purposes of harassing Ms Hunt. It was clear that the environment within the Train Crew Assignment Centre was hostile and that there was a breakdown in several of the relationships between staff in the workplace. 134 In this context, with evidence that morale was low, the staff were in factions, infighting was occurring and staff were generally unhappy, there is not enough evidence upon which to find that the complaints made by Mr Southan and Mr Reece about Ms Hunt were made with the purpose of harassing her, despite Ms Hunt's clear perception that this was the case. 135 Further, there was not enough evidence about the nature and content of the complaints to conclude that, had the conduct of Mr Southan and Mr Reece amounted to a form of harassment that it was of a kind that would meet the statutory definition of sexual harassment. The Claims of Sex Discrimination 136 Section 25(2)(a) of the Anti Discrimination Act 1977 makes it "unlawful for an employer to discriminate against an employee on the ground of sex in the terms of conditions of employment which the employer affords the employee." 137 Sex discrimination is defined in s.24(1)(a): (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex… 138 Ms Hunt claimed that the behaviour of RailCorp employees caused her to suffer discrimination in the terms and conditions of her employment on the basis of her gender. Specifically, Ms Hunt claimed that her complaints were not investigated as promptly and effectively as complaints by male employees, she was consistently being pressured to move to another position that was lesser than the one she currently had, that her performance was not reviewed when it should have been, that she was directed to move to other premises, that male colleagues (namely Mr Setterini) were paid more money than she was, that false complaints were made about her by male colleagues and that the talkback radio incident would not have occurred if she were male. 139 A claim of sex discrimination requires Ms Hunt to show that she was treated less favourably than a male would have been in the same circumstances and that the grounds of that less favourable treatment was on the grounds of her sex. She must also show that she suffered a detriment as a result of this less favourable treatment. 140 In some instances, sexual harassment can be determined to also constitute sex discrimination. O'Callaghan v Loder & Anor (No. 2) [1983] 3 NSWLR 89. This finding can be made in situations where the work environment created by the harassment can be sufficiently pervasive so as to adversely affect the terms and conditions of employment. Hill v Water Resources Commission (1985) EOC ¶92-127. It is still necessary to prove the elements of sex discrimination but the existence of sexual harassment may assist in this. a. Ms Hunt's Complaints were not Investigated as Promptly and Effectively as those of her male colleagues. 141 Ms Hunt claimed that, when she lodged complaints within the Train Crew Assignment Centre, her complaints were not treated as promptly as the complaints made by male staff members. She identified flaws with many of the investigations that were made, particularly about the conduct of the inquiries into the graffiti. She particularly pointed to the speed at which complaints made by Mr Southan and Mr Reece about her were dealt with compared to the length of time it took for her complaints about Mr Rathinam to be concluded. 142 RailCorp gave a great deal of evidence of the steps it took in relation to every complaint made by Ms Hunt. When there were delays in the process, they were explained and, on one occasion, even resulted in the development of a new protocol to ensure that communication about investigations would be clearer. 143 On the balance of the evidence before the Tribunal, and bearing in mind that Ms Hunt bears the onus of proof, the Tribunal cannot conclude that Ms Hunt's complaints were dealt with in a less prompt and less efficient manner than the complaints of other staff members of RailCorp. 144 Even if it were accepted that there was a difference in the way the matters were handled, there was insufficient evidence before the Tribunal to support a finding that the difference in the treatment of the complaints was as a result of Ms Hunt's being female. b. Pressure placed on Ms Hunt to move to another position 145 Ms Hunt asserted that there were a number of occasions when there was pressure put on her from senior personnel to move her out of her substantive position. She claims that the positions that were offered to her were not substantive positions and felt that if she accepted them, her job security would have been reduced. She would have had to apply for them when they were advertised internally with no guarantee that she would be successful even though she would have been acting in the position. Ms Hunt claims that she was never offered the option to be appointed to another position, a process that would not have required her to go through an application procedure. 146 Ms Hunt pointed out that Mr Byrne was not offered other positions and she pointed out that she was a permanent employee and he was not. 147 Ms Hunt said that she would only consider moving into another position if it was a promotion. She gave evidence that she believed that any move sideways would be perceived by those she managed in the Train Crew Assignment Centre as reflecting poorly upon her. 148 Ms Potapof gave evidence that the offers of other positions were made to Ms Hunt as a result of her expressing her dissatisfaction with her treatment within the Train Crew Assignment Centre. Mr Hill gave evidence that he had suggested an alternative position for Ms Hunt as a way of better utilising her change management skills. There was evidence before the Tribunal that some of the motivation in offering Ms Hunt a position was because there were problems within the Train Crew Assignment Centre and moving Ms Hunt was one strategy for dealing with it. 149 However, there was no evidence before the Tribunal to support the contention that the offers made to Ms Hunt were meant to be a punishment, even though she perceived them as such. Further, there was no evidence that supported the finding that the offers made to Ms Hunt were made because she was female and that a male employee would have been treated differently. c. Ms Hunt's performance was not reviewed 150 Ms Hunt presented claims that Mr Byrne, her supervisor, had discriminated against her by not ensuring that she received appropriate performance reviews over a period of two years with the effect of preventing Ms Hunt from receiving salary increases and from addressing any deficiencies in her performance that may have been identified if the review had have taken place. 151 While it was conceded by RailCorp that this was the case, and further acknowledged by them that the failure to undertake the performance reviews resulted in Ms Hunt potentially missing out on increases in remuneration, there was evidence before the Tribunal that no employee within the Train Crew Assignment Centre received a performance review during that period. It was Mr Byrne's evidence that he did not undertake any. 152 On the basis of that evidence, it cannot be established that the failure to undertake Ms Hunt's performance review was a result of her being a woman. The Tribunal finds that the claim of sex discrimination cannot be made out in relation to this matter and that the failure to undertake the performance reviews was a result of poor management. d. Direction to move to another premises 153 On 22 March 2006, Ms Hunt was given a direction to physically relocate from the Train Crew Assignment Centre to the Lee Street premises. The move did not alter Ms Hunt's position as Manager, Train Crew Assignment Centre. 154 Ms Hunt alleged that the direction was a form of sex discrimination. 155 RailCorp said the move was necessitated when Ms Hunt, after an incident on 6 March 2006 in which another RailCorp employee accosted her, raised concerns that she feared for her safety. 156 The Tribunal finds that the direction given to Ms Hunt to move to Lee Street was made with the intention of removing her from a situation that she herself found to be offensive. Accepting the evidence from Mr Cowan that the direction was given with Ms Hunt's best interest in mind, it cannot be established that the move was a detriment to Ms Hunt, even though she perceived it as such. 157 In addition, no persuasive evidence was presented to the Tribunal upon which it could base a finding that the direction given to Ms Hunt was a condition of employment that a male employee would not have been subjected to. e. Male colleagues were remunerated at a higher rate than Ms Hunt 158 Ms Hunt alleged sex discrimination on the basis that a male employee, namely Mr Setterini, was paid more than she was. She based her claim on her belief that Mr Setterini was brought in to replace her. 159 However, evidence was given that demonstrated to the Tribunal that the reason for Mr Setterini being brought in to the Train Crew Assignment Centre was to conduct a review. He was only there for a short period of time while he conducted that review. 160 There was evidence that Mr Setterini was paid more than Ms Hunt but this was explained by the fact that he was doing a different role to her and was on a higher rate of pay than Ms Hunt before taking his temporary position in the Train Crew Assignment Centre. For these reasons, the Tribunal came to the conclusion that it was not possible to compare the positions and remuneration of Ms Hunt and Mr Setterini. In light of that, there was no evidence to support a claim that Ms Hunt suffered from discrimination on the basis of her sex because a male in the same position was treated differently. 161 What was clear from the evidence was that Ms Hunt was very suspicious of the motivations of management in bringing in Mr Setterini. They had not communicated with her about the purpose of his being in the Train Crew Assignment Centre or even the parameters of the review. Mr Setterini was scheduled to conduct his review at a time when Ms Hunt was on leave. These circumstances explain Ms Hunt's suspicions and highlight further the management problems that existed in the Train Crew Assignment Centre. f. False complaints made about Ms Hunt by her male colleagues 162 Ms Hunt alleges that complaints made about her management of the Train Crew Assignment Centre by Mr Southan and Mr Reece were false and constituted treatment that a male employee would not be subjected to. 163 There was evidence before the Tribunal that supported the finding that the environment within the Train Crew Assignment Centre was hostile and that there was a breakdown in several of the relationships between staff in the workplace. 164 In this context, there was no basis upon which to find that the complaints made by Mr Southan and Mr Reece about Ms Hunt were made because she was female. Nor is the Tribunal able to conclude that these complaints would not have been made had Ms Hunt been male or that the complaints would not have been made against a male employee in similar circumstances. Without this comparator, the claim of sex discrimination cannot be made out. g. Comments were made on talkback radio that made reference to Ms Hunt's gender 165 Ms Hunt complained that the incident in which she was the subject of disparaging comments on a talkback radio station on 27 and 28 September 2004 amounted to sex discrimination because male colleagues would not have been subjected to the same treatment. 166 There was little evidence placed before the Tribunal about the content of the remarks. The Tribunal was told that the on air remarks did include an observation that Ms Hunt was female. While it is clear that the incident was distressing to Ms Hunt, it is difficult to make findings of fact without an understanding of the content of what was said on air. 167 Further, there was no evidence placed before the Tribunal upon which to find that this incident was treatment to which she was subjected that a male in her situation would not have been. Accordingly the claim of sex discrimination cannot be made out in relation to this incident. 168 Overall, the Tribunal formed the view on the basis of the evidence before it that the situation in which Ms Hunt found herself was best characterised as one in which she was being harassed by staff members who were working with her or underneath her. Those who were supervising her sought to manage the situation in various ways with various degrees of success. Their actions in seeking to find solutions to the situation did not constitute sex discrimination. The Claims of Victimisation 169 Section 50 of the Anti Discrimination Act 1977 makes it illegal to victimise a person who has brought proceedings of discrimination: (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimized") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) 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 (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. 170 In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC ¶92-808 the Tribunal provided analysis of section 50: The elements of victimisation can be described as a four-fold requirement. Firstly, the respondent must have caused the complainant to undergo or experience something. Secondly, the complainant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the complainant did one of the things referred to in sub-paragraphs (a) to (d). … The phrase "in any circumstances" which does not appear in the Federal legislation in our view emphasises that the word "detriment" is to be given a broad interpretation. As to the meaning of the word "detriment" we do not consider it helpful to refer to the relative concept more applicable to discrimination provisions namely "to suffer a material difference in treatment" but prefer the Macquarie Dictionary meaning of "loss damage or injury"… 171 This approach was affirmed in Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 and D v Berkeley Challenge Pty Ltd [2001] NSWADT 92. 172 Ms Hunt claimed that she was victimised by RailCorp by the fact that she felt she was being pressured to move out of her position as Manager in the Train Crew Assignment Centre and by the fact that she was given a direction to move to the Lee Street premises. a. The Pressure on Ms Hunt to leave her current position 173 Ms Hunt asserted that, as a result of her having made complaints about Mr Byrne, she was pressured to move out of her substantive position. Ms Hunt asserted that there were a number of occasions when there was pressure put on her from senior personnel to move her out of her substantive position. In particular, Ms Hunt asserted that Mr Byrne's unfavourable treatment of her began after she made earlier complaints of sexual harassment against another RailCorp employee, who was a friend of Mr Byrne. These incidents pre-date the period of the complaints that the Tribunal is concerned with here but Ms Hunt claimed that the attempt to move her from her position began after her initial complaints of sexual harassment were made. 174 Ms Hunt felt that the pressure to move was a result of her complaints against Mr Byrne in relation to his management of her and her allegation that he had favoured male staff members over female ones. She noted that Mr Byrne had not been asked to move even though he was not a permanent employee and she was. 175 She claims that, while offers of other positions were made to her, they were for positions that were not permanent and would eventually require her to go through a merit-based process with no guarantees of her success. 176 However, evidence was placed before the Tribunal that indicated that the motivation to move Ms Hunt was based on other reasons that included the observation made by Mr Hill that Ms Hunt's skills could be used in other parts of the organisation as a change manager. The Tribunal also had the evidence of Ms Potapof who stated that between the period of February to September 2004, Ms Hunt indicated to her that she did not feel supported by senior management in any respect and even sometimes called her after work hours. It was as a result of those discussions, that RailCorp considered options it could offer to Ms Hunt to address the concerns that she had raised, which included the option of moving out of the Train Crew Assignment Centre and into another position. 177 Ms Hunt declined the offers of other positions and no attempt was made to forcibly move her from her position. 178 The Tribunal is of the view that the offers of other positions were made to Ms Hunt as a result of her own complaints of her treatment within the Train Crew Assignment Centre. It was one of a variety of strategies that were employed to deal with the issues within the Train Crew Assignment Centre. 179 In considering whether conduct could amount to victimisation, the Tribunal has to be satisfied that there was a real causative effect. Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44. While victimisation does not have to be intentional, W v City of Perth (1977) 71 ALR 943, where there is another explanation for the conduct, that explanation should be preferred and there should be no finding of victimisation. Alone v State Housing Commission (1992) EOC 92-393. 180 There was no evidence before the Tribunal to support a causal link between the complaints Ms Hunt made about Mr Byrne and the offers of other positions. The Tribunal also forms the view that there were other explanations as to why Ms Hunt was offered positions that would have moved her out of the dysfunctional environment of the Train Crew Assignment Centre. 181 That Ms Hunt was suspicious of the motives behind the offers of other positions is reflective of the mistrust and tension that existed within the Train Crew Assignment Centre. The failure to effectively communicate to Ms Hunt why the alternative positions were being offered to her also reinforces the conclusion that poor management practices existed in parts of the Train Crew Assignment Centre. 182 Further, a successful claim of victimisation requires the complainant to show that they suffered a detriment. This means that the complainant must have been "placed under a disadvantage as to a matter of substance, as distinct from a trivial matter". Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42. Since Ms Hunt was able to decline the alternative positions that she was offered and did retain her position as Manager, Train Crew Assignment Centre, there was no evidence that she suffered a detriment. b. The Direction to move to Lee Street 183 Ms Hunt claimed that on 22 March 2006, she was asked by Mr Cowan to attend a management meeting. During the meeting, she was given a direction to physically relocate from the Train Crew Assignment Centre to the Lee Street premises. The move did not alter Ms Hunt's position as Manager, Train Crew Assignment Centre. 184 Ms Hunt alleged that the direction, which effectively moved her out of the Train Crew Assignment Centre, was a form of victimisation as a result of her numerous complaints. 185 RailCorp said the move was necessitated when Ms Hunt, after an incident on 6 March 2006 in which she was accosted by another RailCorp employee, raised concerns that she feared for her safety. 186 For victimisation to have occurred there must be a sufficient connection between the complaints and the behaviour that is said to constitute victimisation. That is, the Tribunal has to be satisfied that there is a real causative effect. Further, where there is another explanation for the conduct that explanation should be preferred and there should be no finding of victimisation. 187 The Tribunal finds that the direction given to Ms Hunt to move to Lee Street was made with the intention of removing her from a situation that she herself found to be unacceptable. Even though the direction required Ms Hunt to work in closer proximity to some RailCorp staff about whom she had concerns, Mr Cowan gave adequate explanations as to why he had reasoned that this move was in Ms Hunt's best interest. The Tribunal found that Mr Cowan's explanation of the reasons why the direction was given to Ms Hunt was credible and, as such, there can be no finding of victimisation. 188 In addition, no persuasive evidence was presented to the Tribunal upon which it could base a finding that there was a causal link between the complaints made by Ms Hunt and the alleged act of victimisation, namely, directing her to move out of the Train Crew Assignment Centre. Aiding and Abetting 189 Ms Hunt alleges that the conduct of RailCorp amounted to aiding and abetting and, as such, amounted to a breach of s.52 of the Anti-Discrimination Act 1997 (NSW). Section 52 makes it "unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act." 190 The claim under s.52 is made on the basis that, in failing to prevent the incidents of graffiti and other behaviour that Ms Hunt complained of, RailCorp aided and abetted those who were engaged in the conduct that targeted Ms Hunt and was unlawful. 191 However, s.52 relates to personal liability of individuals and the appropriate mechanism within the Anti-Discrimination Act 1977 (NSW) by which to attach liability to employers for the actions of employees is through the vicarious liability provisions prescribed in s.53. Section 52 extends liability to accomplices and is intended to catch individuals. Dixon v RNJ Sicame Pty Ltd & Anor [2002] NSWADT 154. 192 With only RailCorp as a party, s.52 is redundant in light of the fact that s.53 will cover the actions of the employees. Vicarious Liability 193 RailCorp is vicariously liable for the acts of its employees and agents under s. 53(1) of the Anti-Discrimination Act 1977 which states: An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. 194 Conduct of employees that amounts to a breach of the Anti-Discrimination Act 1977 can be assumed to be authorised unless the conduct was unauthorised by the principal either expressly or by implication. Shell Harbour Golf Club v Wheeler (1999) 46 NSWLR 253. a. The Graffiti Incidents 195 Ms Hunt was sexually harassed by the content and recurrence of graffiti that was offensive and highly derogatory of her. The Tribunal found that it was highly probable that the person or persons who committed the acts of graffiti were RailCorp employees. 196 RailCorp claimed that it had taken all reasonable steps to prevent conduct by its employees that would be viewed as sexual harassment. It points to its Code of Workplace Standards which sets out required standards of behaviour by its employees, including in relation to issues of discrimination and harassment. 197 It is not enough that RailCorp has policies that prohibit inappropriate behaviour, discrimination and sexual harassment in the workplace. They also need to make sure that they do not authorise the conduct. Employers need to adequately inform their staff of those policies and to properly explain the implications for their breach. Dee v Commissioner of Police and Anor [2003] NSWADT 217. 198 RailCorp provided evidence of all of the steps that it undertook to try to investigate the incidents as they occurred and to prevent them from happening again. It pointed to the fact that each of the incidents that Ms Hunt complained of were investigated, even though Ms Hunt did not feel that the conduct and outcomes of those investigations were adequate. They had engaged external expertise in the form of forensic handwriting experts to assist in the inquiry, had implemented a system of regular checks of the area and had, after some time, installed closed circuit television to monitor the stairs near the toilet area. 199 RailCorp further submitted that because the person or persons responsible for the graffiti could not be found, it was not possible to reprimand them or to take further action. It also pointed to its policies on workplace conduct, specifically policies about appropriate behaviour, discrimination and sexual harassment in the workplace. 200 Mr Cowan gave evidence of the continual correspondence he had in relation to the graffiti incidents and the investigations. There was no evidence that the investigation was flawed and all of the allegations made by Ms Hunt were investigated. Greenhalgh v National Australia Bank (1997) EOC ¶92-884. 201 He gave evidence that regular inspections of the toilets to check for graffiti began on 23 June 2005 with a log book recording the inspections and that a report was prepared for the period of June 2005 to April 2006. Anti-graffiti paint was applied to the toilet walls and closed circuit television was installed to monitor the access area to the toilets. Mr Cowan also provided evidence of correspondence between managers within RailCorp discussing strategies for dealing with the continuing problem of graffiti. 202 RailCorp provided evidence that during September and October 2004, Train Crew Assignment Centre Staff attended briefings on workplace behaviour that were conducted by Ms King and Mr Cowan. The briefings included discussion of the issues of previous harassment and of what constitutes inappropriate behaviour, of the human resources policies dealing with issues of harassment and that harassment would not be tolerated and could result in the termination of employment. 203 Mr Cowan gave evidence that Ms King conducted briefing sessions on 1 and 7 September 2004. He also gave evidence that he conducted briefing sessions on 15, 16, 17, 23 and 29 March 2005, 12 April 2005, 29 September 2005, 4, 6, 13 October 2005, 30 November 2005, 27 January 2006, and 6, 13, 15 March 2006. 204 There briefings, however, did not involve all staff and were not compulsory. This is a fundamental flaw in the steps taken by RailCorp to address the issue in that it meant that it was possible that some staff, perhaps those who were least aware of anti-discrimination, sexual harassment and bullying policies, were able to avoid attending the briefing sessions. In order to be able to assert that it had taken the appropriate steps to avoid being vicariously liable for the actions of its employees, RailCorp should have also made sure that they were all aware of the policies. Their failure to meet this duty is evidenced by the fact that, despite all of the investigations and briefings that RailCorp undertook, the graffiti kept reappearing. 205 Thr Tribunal has formed the view that, while RailCorp did investigate each complaint, its response to the first and second incidents of graffiti on 31 May and July 9 2004 was inadequate. Staff training did not occur until September, well after these incidents. RailCorp's delay in informing staff of its policies, especially given the highly sexualised nature of the graffiti and the widespread humiliation it caused Ms Hunt, causes the Tribunal to find that it is vicariously liable for the first two incidents of graffiti. b. The Pornographic Magazine 206 The placing of a pornographic magazine under Ms Hunt's door on 3 February 2005 was conduct that amounted to sexual harassment by a RailCorp employee. 207 Ms Hunt submitted that the investigation was not carried out in a timely manner, citing that it had taken place approximately one month after the incident occurred, and that she believed that there were other staff members who were involved with the incident. She further stated that it was unfair to imply that it was her fault that the investigation was not more effective since it was RailCorp's responsibility to ensure that the investigation was undertaken properly and promptly. 208 A complaint was lodged about the incident that led to an investigation undertaken by Mr Hirsch, from the Workplace Conduct Unit. He gave an account of the steps he took to investigate the matter and that his conclusion was that the person who placed the magazine under the door could not be identified and there was no evidence regarding how the magazine was left under the door. He explained the evidentiary difficulties he faced in relation to conducting his inquiries. 209 However, the Tribunal formed the view that, while an investigation was done to find out who had put the magazine under the door, it was clear that the person who had done so was a RailCorp employee. RailCorp concentrated on trying to identify the culprit at the expense of or to the exclusion of accepting that the actions indicated that more should be done to reinforce the code of conduct and other policies of RailCorp with its staff generally. 210 An employer is required to take all reasonable steps to show that it does not authorise unlawful behaviour but the standard is not one of perfection. Korczak v Commonwealth of Australia (2000) EOC 93-056; Vance v State Rail Authority [2004] FMCA 240. The Tribunal finds that, although RailCorp did investigate the matter to the extent of trying to determine who had placed the pornographic material under Ms Hunt's door, prior to March 2005 it failed to take the steps reasonably expected to fill the gaps in the training of its staff about what behaviour it sanctioned and what behaviour it didn't. The Tribunal finds that RailCorp was vicariously liable for the actions of its employees in relation to the incident. Damages 211 Section 113 of the Anti Discrimination Act 1977 provides the Tribunal with the power to make an award of damages for established breaches of the Act. Where a breach of the Anti-Discrimination Act 1977 has been found to occur, the quantum of those damages should be assessed by considering the breach as an action in tort. Allders International Pty Ltd v Anstee & Ors [1986] EOC ¶92-157. 212 Such an award can include compensation for economic and non-economic loss. Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503. There, Wilcox J noted that the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult: "... damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage." (at 543) 213 Ms Hunt gave evidence of the effect that the situation in the workplace at the Train Crew Assignment Centre had on her. She gave evidence that she had suffered from mental exhaustion as a result of periods of hyper-vigilance and insomnia, somatic episodes of nausea when confronted with instances of graffiti, depression and feelings of worthlessness, dissociation to the events, low moods and headaches. She was diagnosed with of having suffered from a chronic adjustment disorder with anxious and depressed moods. 214 Ms Merrells, a clinical psychologist gave evidence that she had diagnosed Ms Hunt with depression and a generalised anxiety disorder as a response to chronic and traumatic stress. She concluded that, given Ms Hunt's happy family life, the source of the stress was work related. Ms Merrells did give evidence that the depression was in the mild range and admitted that it could relate to other factors such as stressful financial commitments. 215 While it is clear that Ms Hunt's work situation had a substantial and negative impact upon her well-being, it is difficult to ascertain to what extent the symptoms that she suffered can be attributed to conduct towards her that was unlawful under the Anti-Discrimination Act 1977 and what can be attributed to conduct that was not unlawful. 216 Much evidence was placed before the Tribunal that established that the workplace was unhappy, stressful and dysfunctional in a way that affected many employees within the Train Crew Assignment Centre. 217 Damages for a breach of the Act must compensatory, not punitive [Purvis v State of New South Wales (2003) 217 CLR 92] so the Tribunal must determine an appropriate amount based on the material before it and it must make sure that there is a causal link made out between the unlawful behaviour and the damages suffered. 218 In the large number of complaints that Ms Hunt made about her treatment by RailCorp, she has only been successful in proving sexual harassment in relation to four of the six graffiti incidents and the magazine incident and she can only be compensated for the damages that she suffered as a result of those aspects of her complaints. 219 Ms Hunt claimed that the level of stress that she suffered from as a result of her treatment within the Train Crew Assignment Centre gave rise to consideration for a claim for aggravated damages. Aggravated damages can only be awarded in circumstances where the behaviour that amounts to discrimination is high handed, malicious, insulting or oppressive. Spencer v Dowling [1997] 2 VR 127. 220 A case for aggravated damages cannot be made out in the circumstances in this case. RailCorp took many steps to attempt to address the matters that Ms Hunt raised. Further, the level of stress that Ms Hunt suffered from was also potentially as a result of other factors related to the workplace environment within the Train Crew Assignment Centre, factors that did not relate to a breach of the Act. 221 In relation to the damage suffered by Ms Hunt as a result of the unlawful behaviour towards her, the Tribunal finds that an award of $20 000 is appropriate. This amount includes consideration of the cumulative effect of each of these incidents on Ms Hunt and the graphic and highly sexualised nature of the early incidents of graffiti. Issue of Contempt 222 During the course of the hearing an incident occurred that gave rise to an allegation of contempt by RailCorp against Ms Hunt. 223 On 1 June 2006, Ms Hunt was alleged to have approached Mr Southan at the conclusion of his evidence. It was approximately 11.20am and the hearing had adjourned for a short period. Mr Southan and Ms Henry were waiting in the area adjacent to the Tribunal rooms for a lift. 224 It was alleged that Ms Hunt said to Mr Southan: "I thought the coaching would be over." Ms Hunt then repeated her comment. 225 The matter was raised with the Tribunal immediately after the incident. 226 Ms Hunt denied the allegation. Her evidence was that she, Mr Hunt, her husband, Ms Nicol, her sister and Ms Aldis, a law student had approached the lift area at that time and entered the lift. Ms Hunt denied approaching Mr Southan at the conclusion of his evidence and denied saying to Mr Southan "I thought the coaching would be finished by now." 227 The evidence put before the Tribunal by Ms Hunt stated that she was engaged in a conversation with her husband about her child's sporting commitments and, upon being told by her husband that there would be no game because the team was still being coached, she replied, "I thought the coaching would be finished by now." When Mr Hunt looked confused by this statement, Ms Hunt repeated what she had said. 228 Ms Hunt's version of events was supported by affidavit evidence from Mr Hunt, Ms Nicol and Ms Aldis. The latter is an independent witness to the event and the Tribunal puts weight on her observation of the events. 229 Section 131(1) of the Admisistrative Decisions Tribunal Act 1997 makes provision for dealing with matters of contempt. (1) The Tribunal may report the following matters to the Supreme Court: … (d) if a person wilfully threatens or insults: (i) a member, assessor or officer of the Tribunal, or (ii) any witness or person summoned to attend before the Tribunal, or (iii) a practising legal practitioner or other person authorised to appear before the Tribunal, or … (j) if a person does any other thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court. 230 The provision is clear that there is not an automatic obligation for an allegation of contempt to be referred to the Supreme Court. The Tribunal must first be satisfied that the matter alleged to be contempt is of a grave, serious and weighty nature that would on balance require the Supreme Court to do something positive about it rather than treating the conduct as a technical contempt which would be unlikely to attract a penalty. Daintree Café Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188. 231 On the evidence before it, the Tribunal has determined that because of the conflicting nature of the evidence and the fact that there was a plausible explanation given by Ms Hunt about the comment that was supported by Ms Aldis, whom the Tribunal felt was a reliable and impartial witness, the incident was not of the kind that ought to be referred to the Supreme Court. 232 The question in contempt cases is whether the act that amounts to contempt creates a real risk that, as a result of the act, there would be interference with the course of justice in the particular case or in the administration of justice as a continuing process. R v Taylor [1999] 3 VR 657. On the facts before the Tribunal, this risk cannot be made out. Orders 233 The Tribunal makes the following orders: 1. That the complaints of sex discrimination be dismissed. 2. That the complaints of victimisation be dismissed. 3. That the complaints of aiding and abetting be dismissed. 4. That the complaints of sexual harassment be upheld to the extent that they relate to the graffiti incidents of 31 May 2004 and 9 July 2004 and the magazine incident of February 2005. 5. That the Respondent pay the Applicant $20,000 as damages.

Hunt v Rail Corporation of New South Wales

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