I am reporting sexual harassment I have experienced in the workplace and sexual assault by my colleague Mohammed.

The sexual harassment has been ongoing since fourth of May 2016. This has involved incidences such as sexual comments on my body by Mohammed on the 13th of May 2016. He remarked, "stay there, your ass looks better when you bend over like that".

The sexual assault by Mohammed occurred on 16th of May 2016 between the times 11:30 AM to 1:30 PM at my home. I was feeling sick and collapsed at work and Mohammed offered me a ride home. When we arrived at my house he brought me inside and climbed into bed with me. I continuously said "I just want to go to sleep, I am going to be sick". He moved in and cuddled me from behind and touched me on my breast. I did not want this and I did not consent to this. He was touching my back and tried undoing my bra. He made comments such as "you are so vulnerable, I could do anything to you right now", and that I was "making him horny". I groaned in disgust and said "I just want to go to sleep, I am going to be sick". This constitutes a sexual assault under the Victoria Crimes Act 1958 section 40. It is your obligation to take immediate action on this matter and I look forward to your response.

1. The Applicant was telephoned by Guvenbas shortly after this who said that Abdallah wanted to call and apologise to her. She said she did not want to speak to Abdallah.
2. It is of course true, as the second respondent pointed out in its submissions, that strictly speaking this evidence that Kerkofs complained to others of being harassed is not evidence that is independent of her. She is the source of the evidence.
3. However, in the same way that such evidence of complaint is used in a criminal trial in assessing evidence given by applicant, this evidence can be used in the case before me as supporting her account. It is true that the fact that someone repeats an allegation does not of itself make that allegation true. However, the circumstances in which she described what was happening to her at work to both her mother and her boyfriend add very much to her credibility.
4. These complaints were made at a time when she was not, on the evidence, considering making a claim against her employer at all. Further, her boyfriend gave evidence that he had seen the text exchanges between herself and Abdallah and had counselled her as to the best response to try to deflect what she had realised was an inappropriate attempt by Abdallah to involve her in his private life.
5. Finally, this supportive evidence of the mother and boyfriend was not challenged at all in cross-examination. Its truthfulness was demonstrated by text, email and Facebook messages between the applicant and her mother and father and other witnesses.
6. The respondent has pointed out in submissions, and I agree, that the content of the complaint to the various witnesses differs. She has not described each one of the incidents which make up the first aspect of her sexual harassment claim. She has made a much more general complaint to her mother and her boyfriend. However even allowing for this, the fact that she has described her discomfiture in the way that she has to her mother and boyfriend at the time it was occurring provide significant support to her evidence.
7. It is also true that in describing the incident of 16 May 2017 her descriptions on each occasion have not been identical. I particularly note the criticisms made of her account to the insurance investigator.
8. However overall, her account to each of the witnesses of the harassment at work and in particular the incident on 16 May 2016 was consistent and supportive in relation to each aspect of her sexual harassment claim.

1. Abdallah gave evidence before me.
2. He denied all of the conduct alleged against him. However, there was some very significant inconsistency and evasion in his evidence.
3. The applicant gave evidence that as well as speaking to her in an offensively sexualised way, he also called a fellow employee by the name of Isabella by names such as" babe", and that Isabella had described Abdallah as being a "perv".
4. The question of whether or not those expressions were actually used in the workplace was not to my mind of itself of crucial importance in this hearing.
5. However, Abdallah's evidence about this issue, and his obvious attempt to mislead the Tribunal about the use of those expressions, was a very significant pointer to Abdallah's lack of credibility in giving his evidence overall.
6. Firstly, in his evidence he emphatically said that he called Isabella "baby", not "babe". He said the reason that he did that was because of her young age. He said that he never called her babe and that when he called her a baby it had no sexual connotations. He said that he was just referring to the fact that she was younger than him.
7. This evidence was later contradicted by Isabella herself, who in doing so confirmed the applicant's evidence that Isabella was called babe by Abdallah for a period of time. Isabella was annoyed about it and told him to stop. She seemed perplexed when the suggestion was put to her that the expression related to her age. She was adamant that Abdallah had not called her "baby", or used the term in an age related way.
8. Abdallah's attempt to cover up the use of the expression "perv" was a more serious matter.
9. Isabella had signed a statement which was tendered before me by the second respondent. In that statement, she denied ever having called Abdallah a "perv". This was written in response to the applicant's evidence in her statement also filed in the Tribunal that she had heard Isabella using this expression when describing Abdallah.
10. However, it became clear as she gave her evidence that Isabella had in fact used that expression in describing Abdallah. Further she said that Abdallah had had a conversation with her on the Friday before this case commenced in which he had asked her to deny having done so. It appeared that he had made the same request of her at an earlier time before she made this statement, that is sometime before March 2017.
11. When she gave evidence before me, she said that she did recall having described him as a pervert but did not recall having said that to the applicant. She said that she had used the term as a joke.
12. Abdallah was later prepared to concede in his evidence that Isabella had called him a perv but also said that it was a joke.
13. As I have said, the use of expressions such as this in the workplace was not of itself a major issue in this case. However, Abdallah's attempt to interfere with the evidence of Isabella was gravely concerning. I take the view that it demonstrates that he wished to conceal the truth about this matter from the Tribunal. I accept the applicant's submission that this reveals that Abdallah has a willingness to lie and to request that others lie to cover-up incriminating conduct.
14. There was a significant issue raised by the second respondent as to whether the account given by the applicant of what occurred at her home was plausible. It was suggested that she was wrong in her estimation of how long Abdallah was at her unit. As I understand it, it was suggested that he would not have had the time or opportunity to assault her as she had described because he was only at the unit for a short time, not the 40 minutes which she estimated when giving her evidence. It was said that this reflected badly on her credibility overall in giving her evidence.
15. In support of that argument, Abdallah produced the receipt for his payment for takeaway food which was purchased by him for the applicant and taken back to her unit. He also produced his Citi link account records, establishing the time at which he had used Citi link to drive to her address and to return.
16. In its submissions, the second respondent undertook a detailed analysis of the time that it would have taken for Abdallah to have driven the applicant home, and the time it would have taken for him to return to work. In undertaking this analysis, the second respondent relied upon entries from Abdallah's Citi link account as well as the food receipt which was time stamped.
17. The purpose of this analysis was to show that the that Abdallah would not have had time to sexually assault the applicant in the manner that she had suggested, and to throw doubt about her credibility in respect of her estimate of how long the episode had lasted.
18. Clearly the evidence of the applicant and Abdallah as to the timing of this episode was in sharp contrast. I note that this detailed analysis was not put to Kerkofs in cross-examination.
19. However, if it be the case that the applicant was wrong in her evidence as to the duration of Abdullah's visit to her home, this seems to me to not assist the first or second respondent to any great extent.
20. Abdallah's evidence was that he spent twenty minutes to half an hour with the applicant in her apartment after providing her with food. Even if his evidence is preferred, this does not seem to me to assist particularly in determining whether the incident did in fact happen. The applicant's account did not depend for its truthfulness on any exact calculation of the time Abdallah spent in her unit. I would not expect any witness to be able to be precise about such time estimations.
21. There was another concerning aspect of Abdallah's evidence. The applicant provided in evidence text messages to her phone from Abdallah's phone. Abdallah was not able to produce his own phone at this hearing. It was suggested to him that he had disposed of the phone because he realised that these text messages may have incriminated him. He said that he had no text messages from his phone over the relevant time in 2016 because he had changed his phone every 18 months.
22. When it was pointed out to him that his sworn evidence was that he would have got a new phone shortly before the incident, he then said that the phone screen was broken and that was why he could not access the material on his phone.
23. Of course, as is pointed out in the second respondent's submissions, the actual contents of the text messages were available to the Tribunal because the applicant had kept her phone, so Abdallah's inability to produce his own phone did not harm the applicant's case. However, Abdallah's evidence on this issue was troubling. He gave the appearance that he was making up responses to questions about this issue in order to avoid scrutiny.
24. He also appeared evasive in his answers to questions regarding his Facebook accounts. He had initially denied in his statements that he had any Facebook account of the type described by the applicant. However, when giving evidence before me, after other witnesses called by the respondent had described him showing them his Facebook account, he finally agreed that he had two Facebook accounts and that one of those accounts was kept secret from his wife. He said that was because he couldn't post pictures of clubbing and girls or consumption of alcohol on his normal Facebook account because he wished to keep these matters from his wife.
25. He then said that he had that account when he was at university and although it was still operational he barely used it. He initially said that the friends in it were his university friends and that since he was married in 2013 he did not use it except very occasionally. This description did not tally with the fact that several of his workplace colleagues were also added as friends on that Facebook account. It was remarkable too, that he was not in a position to produce any of the entries from that Facebook account, even though he had maintained it up until the date of the hearing.

1. The second respondent called evidence from two directors of the company Philip and Jason Downing, and also from various employees of the company.
2. I do not intend to analyse the evidence of each of the witnesses separately. Many of those witnesses did not work directly with the applicant, and several had not spoken to the applicant at all during the time that she was employed by the second respondent.
3. Although in its written submission the second respondent emphasised that the workers called all supported the company's description of its workplace as being supportive and non-discriminatory, there were in fact very few workers who were able to provide anything more than just general background in relation to the incidents.
4. Counsel for the applicant criticised this evidence from company employees on the basis that those employees were all still employed by the company and could not be seen to be independent witnesses. Their jobs and future promotion was in the hands of the company. I accept that the evidence bears this out.
5. In my view the most important feature of this evidence was that none of the witnesses identified so far had any significant dealings with the applicant in the short time that she worked at the company, and could only provide generalisations about the company's culture. In so far as they described Abdallah, all they could do was describe their own interactions with him. The evidence they gave is therefore a very limited use to me in assessing whether or not the incidents described by the applicant actually happened.
6. At its highest, all that could be said was that none of those workers had seen any of the incidents about which Kerkofs had complained, and that they would not have expected Abdallah to have behaved in the manner alleged.
7. Broadly speaking, in so far as that evidence was relevant at all, it was as general good character evidence supporting Abdallah, rather than any evidence of what actually occurred to the applicant in this workplace.
8. I do wish to deal with the evidence of three of those witnesses in more detail. These witnesses were directly implicated by the applicant in the harassment against her.
9. They were Paul Miller, Guvenbas, and Jason Downing.
10. Paul Miller provided a brief statement which had been prepared by his employers. He gave evidence and was cross-examined before me. He said that he had regular contact with the applicant during the course of her employment and he would see her in Guvenbas' office. He said that he didn't talk to her much at all. He said he had never witnessed any sexual harassment of her or inappropriate conversations about women around or directed at her. He denied participating in the conduct which the applicant had described.
11. He did however agree on cross examination that from time to time there would be inappropriate jokes made in his workplace. He said that he recalled on occasion on which he was shown a picture of a half-naked man by a fellow employee. He said he wouldn't be surprised if such activity occurred at his workplace, although he said that the office section of the company was a more civil area than the shopfloor and he would not expect those conversations to take place in the office. He was not employed in the office area.
12. Tuncay Guvenbas gave evidence before me. He denied having himself witnessed or participated in any of the incidents described by the applicant.
13. It is significant to note that he had no complaints at all about the applicant's work prior to these events.
14. His evidence was essentially that if those incidents occurred, he did not see them. He did not know of any text messages between Abdallah and the applicant.
15. He had not heard of the invitation Abdallah gave to the applicant that he wanted to massage her - or that he had invited her to a party at which it was expected that Abdallah's wife would not attend - both invitations clearly established on the evidence, and both inconsistent with Abdallah's denial of having had any social interaction with the applicant.
16. My overall conclusion was that Guvenbas was giving truthful evidence but that there was a significant amount of activity in the office and outside working hours which he did not know about.
17. He appears to have initially decided that the allegation against Abdallah was probably true, and only changed his mind when spoken to by Mr Jason Downing, his immediate superior. Abdallah is not a native English speaker. Jason Downing wondered whether the applicant's account could be accurate, because Downing doubted that Abdallah would use the word vulnerable, as the applicant had suggested he had whilst assaulting her.
18. At Downing's instigation, Guvenbas confronted Abdallah and asked him if he knew what the word "vulnerable" meant. Abdallah said that he didn't. This short response apparently persuaded Guvenbas and the Downing brothers that the applicant's account must therefore be false.
19. As I have said, Jason Downing is a director of PMP.
20. His evidence was that although in his daily activities he would need to leave the office and go to other parts of the business frequently he would have expected to have seen any sexual harassment of the type described by the applicant had it occurred.
21. He trenchantly denied having been part of any unsavoury conversations in the work place. He had a very high opinion of Guvenbas and suggested that Guvenbas would have "hit the roof" if he saw any sexual harassment in the office.
22. There were two interesting aspects to Jason Downing's evidence.
23. Firstly, he described the applicant as having been an excellent employee and he was sure that she would have been on track to have a higher and better paying position in the company had she stayed and this incident not occurred.
24. Secondly, he had initially formed the view that the claim against Abdallah was true. He only changed his mind when Abdallah denied knowing what the word "vulnerable" means as I have described the incident above. He was also influenced in this change of mind by googling his own research on the Internet about sexual assault. He sent some of the content of the websites he visited to the company's workcover insurer in an effort to persuade the insurer that Kerkofs claim was fraudulent.
25. He gave evidence about the way that the company had investigated this complaint. Given, as I will later explain, the company did not seek to rely on any potential defences under the Act, the evidence about this investigation had little relevance to the issues before me.
26. It is however alarming that no proper and independent investigation was carried on by the company and that directors of the company such as Jason Downing were prepared to base decisions about whether or not to defend this claim on the basis of uninformed Internet browsing.

1. The Act provides that a person sexually harasses another person if that person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person or engages in any other unwelcome conduct of a sexual nature in relation to that 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.
2. The way that this case has been run is that had the first respondent Abdallah engaged in the conduct which was described by Kerkofs then he would properly be characterised as having sexually harassed her, and the respondent would be vicariously liable for that harassment.
3. There has been no real argument that if the conduct described by Kerkofs occurred, it would not constitute sexual harassment under the Act. Abdallah's evidence was that he had not engaged in any of the conduct described at all. He did not say that he had acted as she described, but that it was part of a consensual interaction with the applicant.
4. I do note however, that in respect of the suggestion by Abdallah that he give the applicant a massage (a suggestion contained in a text message which is not specifically relied upon in the points of claim as part of the sexual harassment itself) the applicant was cross-examined with a view to suggesting to her that this suggestion was a joke and that she was not offended by it. Her response was essentially that she was not happy with it but as a new employee felt that she could not offend her immediate superior by responding to the text message adversely.
5. In its submissions, the second respondent asserts that the applicant did not lead any specific evidence that the massage comment was unwelcome. This submission has no merit, particularly in the light of the fact that in the same submission the second respondent describes the offer of a massage as being "probably unusual and probably somewhat inappropriate". This submission is also at odds with the applicant's evidence as a whole as to the circumstances of the harassment in the office which she described. It was clear from her description that she did not wish to participate in a massage, or any other familiar or sexual activity, with the first respondent.
6. So the first issue I must determine is whether the sexual harassment, either in its first aspect, being unwelcome sexual conduct in the workplace, or its second aspect, being the incident described as occurring on 6 May 2016 at the applicants residence, did actually occur.

Comparison of the evidence of the applicant and Abdallah

1. The applicant has the onus of proving that the incidents on which she relies as constituting sexual harassment actually did take place.
2. It is well accepted that the standard of proof in cases such as these is the civil standard, that is whether is more probable than not that the incidents happened as she described them, but that when considering the application of that standard, I should take into account that the matters alleged are very serious and look at the evidence with rigour. This is often described as being the Briginshaw standard.
3. In this case I have starkly differing evidence from the applicant and from Abdallah as to whether or not the incidents detailed in the applicants claim did actually take place.
4. The applicant gave her evidence in a credible and consistent manner. That evidence was tested over three days by cross examination and very little inconsistency was revealed through that cross examination.
5. In the main the cross examination pointed up inconsistencies of a peripheral nature. I was struck by how consistent her account was with the account also given by her boyfriend and her mother. It was also consistent largely with the account she had given to doctors although it is true as the second respondent points out, that some of those aspects of the patient histories were inconsistent.
6. There were indeed some other inconsistencies in the applicant's evidence. Those inconsistencies were set out in great detail in the submissions of the second respondent. However overall her evidence was extremely credible. I do not see the inconsistencies which were identified as reflecting adversely to any great extent on the applicant's credibility overall.
7. Inconsistencies in an account of sexual activity are to be expected. One should not expect an identical account on each occasion a traumatic sexual experience is recounted. Looking at her evidence as a whole and taking into account the evidence of her mother and Smith, Guvenbas and Philip Downing, the account which she appears to have given is remarkably consistent overall.
8. The second respondent submitted that there were four aspects of the applicant's evidence which revealed that her evidence was false. They were as follows.
9. Firstly, it was submitted that the weight of the evidence was against her.
10. Secondly, it was submitted that the timeline of events described at her house on 16 May should be rejected, and her evidence about the occurrence of the sexual harassment itself should therefore be rejected.
11. Thirdly, it was said that she had falsified or concocted the medical condition which she described in her evidence as leading to her weakness and need to be sent home on 16 May 2016.
12. Lastly, it was said that the credibility of the applicant by reason of her inconsistencies fell far short of that required to sustain the claim to the Briginshaw standard.
13. I have dealt with and rejected each of these criticisms apart from the matter which has been raised regarding the applicant's medical condition. In my view this criticism also has no substance.
14. The applicant gave evidence that she felt unwell on the morning of 16 May 2016. She gave detailed evidence that she had long suffered from a condition of indeterminate diagnosis, but characterised by fainting, weakness, vomiting and inability to perform basic tasks. She said that it was a "family trait" and that her mother also suffered from this condition from time to time. She said that she had suffered an attack from this condition on that day whilst on the tram on the way to work, and that was why she needed to return home.
15. The second respondent says essentially that she has fabricated this condition or else significantly exaggerated its effects. It describes her evidence about this medical condition as "demonstrably false". It is suggested that she has done this deliberately in order to explain her story about being unable to fend off Abdallah's sexual propositioning at her home.
16. The applicant's mother gave evidence to the Tribunal that the applicant did suffer from this condition and that the mother had also suffered from the same condition over a period of many years. The first respondent said that this evidence was highly improbable and that it was very likely that the mother had colluded with the daughter in falsifying evidence.
17. The second respondent asserted that the medical evidence of Dr Sycamore the family doctor, and the evidence of the boyfriend, who had not seen the applicant suffer such an attack, contradicted the applicant's evidence about this medical condition.
18. The second respondent also pointed out that this medical condition had not been the subject of medical histories given by the applicant to the various doctors whose reports were in evidence.
19. The suggestion that the applicant made up this medical condition or that she and her mother colluded in giving false evidence to the Tribunal was not put to any witness. I reject it. The evidence of Dr Sycamore was that he had seen a dramatic example of this condition of nausea being suffered by the applicant on one occasion and that one of his colleagues had seen a separate incident of the same nature. The fact that the condition was not able to be precisely diagnosed, or that it was often brought on by riding in a car, rather than, as in this case, riding in a tram, does not support any suggestion that the condition was fabricated.
20. It is also not to the point that the applicant did not describe this condition to the medical witnesses. Clearly this medical condition is quite separate phenomenon to the injury which she suffered as a result of this harassment. It simply was not relevant to the evidence of the expert medical witnesses in this case. They examined the applicant in respect of the injury that she had suffered as a result of this harassment. It was no part of their task to diagnose this separate medical condition.
21. In any event, the respondents own witness Guvenbas gave evidence that he had observed the applicant as being ill on the morning of 16 May 2016. Guvenbas described in his insurance statement how he saw her become very faint and literally hitting the wall on her way back to the desk and being grabbed by another member of staff as she was sliding down to the floor. He described her as being very weak on her feet and fragile. He decided on the basis of his observation of her that she should be driven home rather than being left to catch public transport home.
22. It was not suggested to him at any time that she was faking these symptoms.
23. The authenticity of her symptoms was also supported by the evidence of Richard DeSilva, the Health and Safety representative of the second respondent who also saw her incapacitated on that morning.
24. Finally, it is illogical to suggest that the applicant would have deliberately faked these medical symptoms in order to engineer a situation where Guvenbas directed Abdallah to take her home. It is just as likely that Guvenbas might have sent her home by taxi, or asked another member of staff to drive her, or indeed to have let her take the tram home, as she had apparently planned to do.
25. I will also briefly deal with the suggestion that the fact that the applicant ultimately did not pursue a complaint to the police reflects on her credibility. It is common knowledge that many persons who are victims of sexual assault are not prepared to go through the trauma of giving evidence in a criminal trial. Philip Downing pressed the applicant to make a complaint to the police. He contacted the police himself about this matter and appeared to be annoyed that the applicant took so long to make a police statement. He appears to have made a decision that if the applicant was not prepared to go through with a criminal trial then she must be giving a false account.
26. His assumption to that effect is untenable and I reject it.
27. In contrast the evidence of Abdallah was unimpressive. He was evasive in answering questions.
28. Most concerningly, he approached Isabella and requested her to deny that she had ever called him a "perv" at work. She agreed to this request and made a false statement which was filed in this Tribunal. It was only when Isabella baulked at repeating this falsehood in the witness box that this interference by Abdallah came to light.
29. I have concluded that Abdallah was not a witness of truth in relation to at least some of the evidence that he gave.
30. The approach that I have taken to his evidence is that I do not consider it reliable unless supported by other evidence.
31. There was evidence called from employees of PMP to the effect that no such conduct was observed by any employee of PMP, and that this type of conduct is totally out of character for Abdallah.
32. There was also evidence that if any such conduct had been committed, it would have been noticed by employees in this small work place.
33. As I have previously pointed out, this evidence did not address the principal issue of whether the acts of sexual harassment had occurred.
34. The highest that this evidence represents is that no one else in the workplace saw any such activity, and that those witnesses who gave evidence thought it unlikely that such behaviour would take place without being observed.
35. Those witnesses have not had the benefit, as I have, of hearing all of the evidence in this trial.

1. It is my view that it is more probable than not, taking into account my responsibility to assess the evidence carefully and rigorously having regard to the serious nature of the allegations, that each one of the acts of sexual harassment complained of by Kerkofs was committed by Abdallah.
2. I am amply satisfied that the applicant has made out her claim of sexual harassment against Abdallah in both aspects.
3. As to the first aspect, I am satisfied that he directed unwelcome conduct of a sexual nature towards her at the premises of the second respondent and in the course of her employment.
4. In particular I am satisfied that he addressed her with nicknames of various descriptions.
5. I am satisfied that he made comments about her body including her breasts and their size and whether they looked good in particular clothing. I'm satisfied that he stared at her body. I'm satisfied also that on numerous occasions he approached her from behind and massaged her shoulders and neck.
6. I am satisfied that on a particular occasion while she was leaning over a desk he approached her from behind and made a comment about her bottom.
7. I am satisfied that he showed her a Facebook page in which he communicated with young girls.
8. I am satisfied in relation to each of these items of conduct that it was unwelcome conduct of a sexual nature.
9. As to the second aspect of the claim, I am further satisfied that on 16 May 2016 when Abdallah drove the applicant home, he engaged in further unwelcome conduct of a sexual nature in that he massaged her while she was seated in the car. He then touched her in a sexual manner inside her home while she was on the bed ill, including touching her breasts nipples and back and attempted to unfasten her bra.
10. I am satisfied he also kissed her and touched her on the head and made sexual comments to her.
11. All of the conduct which I have described above is unwelcome conduct of a sexual nature and thus Abdallah has sexually harassed the applicant in the terms described in section 92 of the Act.
12. I am satisfied that he committed these unwelcome sexual advances and unwelcome conduct in circumstances in which a reasonable person having regard to all the circumstances, would have anticipated that the applicant would be offended humiliated and intimidated by that conduct.
13. There was evidence presented by the applicant that some of the unwelcome sexual conduct which occurred at the workplace was also participated in by other workers, namely Paul Miller, Jason Downing and Tuncay Guvenbas.
14. There is no claim before me against any of these men. Each gave sworn evidence strenuously denying that they had participated in any of the incidents about which the applicant gave evidence.
15. I have been unable to reach a concluded view as to whether the evidence of the applicant about the participation of Miller, Guvenbas and Jason Downing in some unsavoury conversation or activity in the office should be preferred over the evidence of these three witnesses. In any event it is not necessary for me to ultimately decide this issue and I make no finding one way or the other as to the description by the applicant as to the conduct of any of those persons.

1. Having found that Abdallah has engaged in unwelcome sexual conduct against the applicant in the circumstances described above, I now turn to consider the question of whether the second respondent is liable for Abdallah's actions.
2. There is no suggestion that PMP sexually harassed Kerkofs. However, the second respondent is joined in this proceeding under s109 of the Act.
3. That section provides that if a person in the course of their employment sexually harasses another person then "both the person and the employer must have taken to have contravened the provision".
4. Thus, Kerkofs says that she has been sexually harassed by Abdallah. She says that that sexual harassment was engaged in by Abdallah in the course of his employment with PMP. Therefore she says PMP must be taken to have contravened the provision and so is also liable for damages.
5. There is an exception to this principle. It is contained in s110 of the Act. That provision provides that the employer is not vicariously liable if the employer proves, on the balance of probabilities, that the employer took reasonable precautions to prevent the employee contravening the Act.
6. In its written defence filed in this proceeding, PMP says that it had taken reasonable precautions to prevent any such misconduct. It says that these precautions consist of creating an employment policy that set out a policy on harassment. It also said that it put a process in place to train new staff in that policy.
7. Thirdly, PMP says that the company was small enough and well supervised enough that any conduct of such nature would have been witnessed and dealt with appropriately by senior management had it occurred.
8. In its written defence PMP further says that the conduct alleged at Kerkofs home falls outside the scope of Mr Abdallah's employment.
9. However, when the matter was heard before me the directors of the company stated emphatically and repeatedly that they did not wish to rely upon these potential defences. They intended to establish that the claimed sexual harassment did not occur at all. As I have earlier noted, Philip Downing told me that if any amount was awarded against Abdallah, the company had agreed to pay it and to indemnify Abdallah in respect of any liability in this proceeding.
10. I suggested throughout the course of the hearing that PMP should seek legal advice as to these issues. However the company maintained that position and it is on this basis that I have proceeded to judgement in this case.
11. Nevertheless, I have actively considered whether either of these defences could apply on the evidence which I have heard in this case.
12. I have determined that neither defence is made out on the evidence presented in this case.
13. Although some evidence was presented by the company as to what it says was an equal opportunity and caring workplace culture, this evidence was presented for the purpose of supporting its argument that the sexual harassment did not occur, rather than making any argument that it was sufficient to establish a defence under section 110 of the Act. In my view it is not of sufficient breadth or depth to establish this defence. There was no credible evidence that the company had taken reasonable precautions to prevent Abdullah from contravening the Act.
14. The same can be said of the potential defence that Abdallah was acting outside the course of his employment. He was in fact specifically instructed by his superior to drive the applicant to her home on 16 May 2016. It thus cannot be said that this incident did not take place in the course of his employment.
15. Given that the company has expressly disavowed any of the defences under the Act, and there is no factual material sufficient to establish either of those defences, I find that PMP is so liable, applying section 109 of the Act.

1. As part of her claim for damages, Kerkofs had originally claimed damages for pain and suffering, aggravated damages, compensation for loss of earnings and superannuation, compensation for out of pocket expenses and the costs of this hearing.
2. She later amended the claim to remove the claim for lost earnings. As I understand it, this is because the second respondent's WorkCover insurer has accepted her claim, and so she will receive payment of her lost income and payment of the medical expenses into the future under WorkCover legislation.
3. The damages claim before me is therefore a claim for pain and suffering and aggravated damages, together with a claim for the legal costs and expenses of this hearing.
4. The injury which she claims to have suffered is psychiatric injury, being a condition of post-traumatic stress disorder.
5. Given that I have found both aspects of the claim proven, is not strictly necessary for me to make a finding as to which of those aspects of sexual harassment caused the injury for which damages is to be assessed.
6. I do however indicate that in my view the most significant harassment is that which occurred on 16 May 2016 at the applicant's home.
7. The medical witnesses were not asked to get to differentiate between these two different aspects as causes of her psychiatric injury. Several have emphasised the incident on 16 May 2016 as being a traumatic incident directly causally related to her psychiatric injury. I consider it most likely that the harassment on 16 May 2016, taking place against a background of uncomfortable but relatively minor experiences of harassment in the office by the same perpetrator, was the most significant precipitating factor in her psychiatric injury.

1. As I have said, the applicant seeks damages for pain and suffering. Her evidence was that she initially suffered from constant stress and anxiety and endured bizarre and scary dreams.
2. She thought initially that she could get on with things but this condition continued. She constantly thought about her work with PMP, going over conversations and incidents involving Abdallah in her mind. She tried to block out what had happened but her condition became worse. She began to feel scared to leave the house and see people and had trouble focusing or concentrating. She started having panic attacks and irrational fears.
3. Initially she saw a doctor by the name of Dr Radosavljevic. That doctor referred her to Dr Loming, the psychiatrist who saw her initially and has continued to see her up to the present.
4. She became increasingly isolated and suffered from regular suicidal thoughts.
5. Once she commenced medication her condition gradually stabilised but she was unable to work for a significant period of time. She still takes antidepressant tablets.
6. In her first statement she described herself as frequently highly anxious and suffering broken sleeping patterns. She still found it very difficult to maintain concentration. She described how very difficult it was to leave home because of her anxiety about people and fear of "bad situations". Her trust in men was significantly harmed. Her relationship with Jackson Smith had broken down. She described herself as living quite an isolated life to protect herself from her fears.
7. She described the events of 16 May 2016 coming back to her every day in memories and flashbacks.
8. That was the description that she gave about her condition in March 2018.
9. In July 2018 she obtained casual employment as a gallery assistant but was later retrenched from that employment, and as at the date of this hearing was no longer working.
10. This description of her condition is supported in the reports of her treating psychiatrist Dr Juliana Loming. I received two reports from Dr Loming. The first was dated 26 June 2017 and the second 15 June 2018.
11. In her first report Dr Loming describes "slow and minimal" improvement in the applicant's mental illness. She described a short period of improvement in January 2017 but the symptoms returned again in February. She describes her as continuing to experience significant anxiety and depressive symptoms, panic attacks and avoidance behaviour. At that time her condition had not stabilised.
12. In the second report which describes the applicant's condition up to 15 June 2018 Dr Loming diagnosed her with post-traumatic stress disorder and major depressive disorder. She directly links those diagnosis with the sexual assault by Abdallah.
13. She believes that regular consistent therapy will be required in the future to improve her mental state. If this was done her prognosis would be good but this would also depend upon her leaving Melbourne and being in a supportive environment where her family could assist her to recover. She will need regular psychiatric and psychologist assistance into the future.
14. Dr Loming gave evidence before me and confirmed that diagnosis.
15. In particular she referred to the applicant's extreme state of distress when she recounted the events which had taken place at her home. The applicant is still on prescription medication and Dr Loming does not think that this will change in the near future.
16. The opinion of Dr Loming was supported in all of the other medical reports tendered in evidence, including those commissioned by the Workcover insurer, and also including the medical report of Dr Schultz which was presented on behalf of the second respondent.
17. Although I received medical reports from nine doctors into evidence, only two of these doctors were cross-examined by the second respondent.
18. The first was her original general practitioner who was a family general practitioner when she lived in New Zealand, Mark Sycamore. He had known her since birth and had treated her up until the time that she left for Australia at the end of 2015.
19. The second was Dr Juliana Loming.

1. The major question about this claim for damages was the relationship if any between the psychiatric injury described in the medical reports as having occurred as a result of the harassment, and an earlier depressive episode which had occurred in New Zealand and arose out a her employment at a workplace in that country.
2. The evidence was that for a period of approximately five months in 2015, the applicant had been on compensation payments in New Zealand in respect of this earlier incident.
3. I heard evidence from Dr Sycamore and received various medical reports in which this earlier incident was described.
4. The second respondent submitted that this had been a significant injury and that it was still present at the time she commenced her employment. Therefore, any psychiatric injury she describes as having occurred as a result of the harassment should be ignored, or at the minimum heavily discounted, because of that previous mental history.
5. The difficulty with this submission is that it is counter to all of the medical evidence which I have received.
6. The second respondent arranged for an independent medico legal report from Dr Schutz (a very experienced consultant psychiatrist) and asked for his detailed opinion on this issue.
7. Dr Schutz saw the applicant on 30 May 2018 for the purpose of advising the second respondent as to the extent to which the applicant had psychological problems at the time she commenced work on 4 May 2016, and also advising it as to the general reliability of the other medical reports which have been filed in this proceeding.
8. In considering the first issue, Dr Schutz opinion correlated with the other medical evidence produced by the applicant. His opinion was that the 2015 depressive episode had resolved by the time she moved to Australia.
9. In his report he says this:

Furthermore, the assessments during 2015 indicate a likely diagnosis of an adjustment disorder with depressed mood or similar condition. These conditions can resolve following changes in life circumstances and with brief psychological therapy. There was no indication at that time that she had a major psychiatric condition such as bipolar mood disorder, post-traumatic stress disorder, schizophrenia or a major depressive disorder. As such, it is plausible that her condition would have resolved by the time she had moved to Australia even though she had ceased antidepressant medication at that stage. I have been provided no medical evidence to the contrary. I would therefore state that taking in all these factors into account there is insufficient evidence that she had an ongoing psychiatric condition at the time that she commenced employment on 4 May 2016.

1. The doctor also made the following comment on that issue:

I note you have asked whether she had psychological problems. I note she may have had premorbid vulnerabilities in terms of substance use, difficulty forming friendships, being a difficult child, issues with assertiveness and feelings of not being good enough. She may have been somewhat immature. These vulnerabilities however do not in themselves reach the threshold for a pre-existing psychiatric condition such as substance use disorder or personality disorder.

1. As I have said, Dr Schutz appears to have been in possession of all of the other medical reports which have been filed on behalf of the applicant when he made that assessment. His opinion on the second issue - the general reliability of the applicant's medical material -was that he made no significant criticism of any of the medical opinions relied on by the applicant.
2. The only issue of importance was in respect to the evidence of Dr Loming. Loming gave evidence that she believed the applicant's account of being sexually assaulted. Dr Schutz pointed out, and I wholeheartedly concur, that it is no part of any doctor's task to investigate the truth of a patient's account. The task of a doctor is to diagnose and treat the condition suffered by the patient. Nevertheless, Dr Schutz had no quarrel with Dr Loming's diagnosis or treatment regime.
3. In his cross examination, Philip Downing attempted to suggest to the applicant that she was still on antidepressant medication when she arrived in Australia, and that her condition was still present when she commenced work. This suggestion is against all of the evidence that I have heard. It is against her own evidence. It is against the evidence of Jackson Smith. His evidence was that apart from being "sad" at the break up with him, she was not suffering any mental condition at the time of commencing work. Her mother also gave evidence that the applicants depressive condition described in the New Zealand reports had resolved by the end of 2015, before she moved to Australia.
4. It is true that the applicant agreed in cross-examination that she took some medication to Australia, or at least a prescription for that medication. There is no evidence at all that she in fact needed to use it in Australia. There is no evidence that she developed any psychiatric or psychological condition in Australia that required it prior to the sexual harassment which is the subject matter of this proceeding.
5. And most tellingly of all, as I have earlier indicated, Jason Downing gave evidence that at the commencement of her work she was an extremely effective employee.
6. Indeed he says this in his statement filed in the hearing:

I found Ruby to be an excellent employee, she was reliable, well spoken, able to grasp difficult concepts, able to deal with difficult people, professional and efficient. This is the only positive comment I have about Ruby given the events that followed, but I will say that if she had simply continued the way she was going she would still have a job with us today on substantially higher pay with genuine responsibility and as a valuable member of the team.

1. These observations were also mirrored in the evidence of Philip Downing and others of the respondent's witnesses.
2. In his written statement tendered in evidence, Guvenbas described the applicant as follows:

"She was good at her job and I was pleased to have her in the team."

1. I therefore find that as at the time of commencing her employment, the applicant was not suffering from a pre-existing mental condition which would have operated to diminish or change in any way the approach I should take to the assessment of damages in this matter.

What injury did the applicant suffer as a result of the sexual harassment?

1. All of the doctors who provided reports agree that as a result of the sexual harassment, either the incidents at work, or the incident at her home on 16 May, or in combination, the applicant suffered from post-traumatic stress disorder. Once again, Dr Schutz reviewed all of his medical material and provided a report to the second respondent on 5 June 2018.
2. His conclusion was that she was experiencing chronic post-traumatic stress disorder. On the assumption that the incident with Abdallah - which I take to be the incident at home - occurred in the manner in which she described Dr Schutz said that she would meet the criterion for post-traumatic stress disorder because of exposure to actual or threatened sexual violence.
3. He has confirmed the diagnosis of her current treating psychiatrist Dr Loman, who gave evidence before me in this hearing. He also confirmed the evidence of Dr Kotsias, an independent psychiatrist who was engaged by WorkCover and assessed her shortly after the incident with Mr Abdallah took place.
4. Dr Schutz was also of the opinion that she may have developed a chronic adjustment disorder with depressed mood. He thought that at times she might meet the criteria for a major depressive episode.
5. He believes her condition is to have improved somewhat following treatment but is not in remission and is consistent with a diagnosis of post-traumatic stress disorder.
6. I accept this description of the medical evidence and I rely upon it for the purpose of assessing damages in this case.

1. I assess pain and suffering damages on the basis that the applicant has an ongoing condition of post-traumatic stress disorder which will need to be controlled indefinitely by behaviour and by medication. Any lost earnings or earning capacity is to be disregarded by me in making this assessment.
2. In considering the quantum of an award of damages in this jurisdiction, I bear in mind that the purpose of an award such as this is to attempt to measure in money the injury suffered by the applicant because of the sexual harassment. It is similar to an assessment of damages in common law.
3. I am also required to take into account the objects of the Act in making my assessment. In that respect I accept that an award of damages in a case such as this must reflect the need to eliminate sexual harassment to the greatest extent possible in the workplace and encourage the identification and elimination of sexual harassment generally.
4. The applicant made submissions as to other relevant factors in assessing compensation in this case. They are as follows ;
5. Firstly, the applicant's counsel stresses the fact that Abdallah was in a position of authority with respect to the applicant. I accept that this was so. It was underscored by the extreme support given to Abdallah in this case. It was support in the sense that Abdallah was completely backed by the Downing brothers to the extent that they have undertaken to pay any costs and damages ordered against him in this proceeding.
6. It was also underscored by the glowing description of his character and the efforts which they have made to ensure that other glowing descriptions of his character have been placed before this Tribunal. All of this makes it clear that Abdallah was in a trusted position in the company and was seen as a favoured employee. His authority over the applicant as a young girl of 20, starting out employment in a new country, is clear.
7. Further as has been pointed out in the applicant's submissions the applicant was going through a relationship breakup and Abdallah knew this. It is also important to note that in the incident on 16 May 2016 Abdallah knew that the applicant was ill. He was told to drive her home because of this fact. She attempted to go to bed. He took advantage of her illness and her incapacity by attempting to sexually assault her.
8. All of this points to his behaviour being extremely predatory throughout the period and particularly on 16 May 2016.
9. I have described the earlier incidents of sexual harassment at the office as being relatively minor. They are of course of significance when seen in the context of Abdallah's position of authority and the predatory way in which he approached the applicant. However, the incident on 16 May 2016 is significantly more serious. I must send a clear message through this award of damages, relying upon legislation designed to enforce community standards, that this type of behaviour is not acceptable at all in any workplace.
10. The applicant also relied upon the medical evidence of the severe psychological reaction which she had suffered and the need for treatment and medication which has profoundly affected her. It has affected her trust in men. It is affected her capacity to function in the daily life and it is ongoing.
11. I assess damages on the basis that she suffers from a long term condition, clearly caused by the harassment undergone at Abdallah's hands. It is not to the point that a person with a more robust personality could have easily brushed off this behaviour and not be affected by it.
12. In my view the applicant is entitled to a substantial award of damages. She is still a quite young woman with the rest of her life in front of her. The medical diagnosis is that this condition which she suffers from is likely to be long-standing. She has been so badly affected by this incident that she has resorted to dressing in an unfeminine way, utilising oversize dresses in order to disguise the fact that she is female. She is hyper vigilant, anxious and cannot concentrate.
13. These aspects of her condition may show some improvement once this case is resolved. However, Dr Loming's evidence was that her mental state has not improved markedly over the time that she has treated her. She describes the applicant as improving and subsequently suffering deterioration again. She sees her doctor every three weeks and is still on prescription medication.
14. The evidence from the respondents own witnesses is that had this incident not occurred she would have had the prospect of a bright future indeed at the company. She had completed a three month course of study in Melbourne. She was seen by every witness of the respondent who expressed a view about her working capacity as having had the potential of a bright future and career path. This sexual harassment has literally stopped her in her tracks.
15. In all the circumstances it is my view that an appropriate award for pain and suffering is $130,000.

1. The applicant seeks an award of aggravated damages because of the way which this case has been defended.
2. Aggravated damages is sought against PMP. In making this claim, the applicant accuses PMP of failing to conduct anything even approaching an impartial investigation of her allegations. She also relies upon the indeterminate arrangement between the first and second respondent. She further relies upon the actions of Philip Downing in cross-examining the applicant to suggest that her evidence about Isabella being called a perv was wrong when he well knew from at least the Friday before the hearing commenced that her statement which he had tendered was in an important respect false.
3. The applicant also relies generally on various aspects of the cross examination as being contrary to the evidence before the Tribunal. The applicant describes the attitude of the second respondent to contamination of the witnesses' evidence as being "cavalier".
4. This arises out of the fact that the whole of the company's file on this claim, including the statements of witnesses, was placed on the company's intranet. It was readily available for viewing by any member of staff before their statements were taken. Further, Philip Downing had invited at least one member of staff to read the file in paper form before giving a statement.
5. The prospect of contamination of witness statements was therefore clear, not to mention the invasion of the applicants privacy, as her statements were of course on the company file.
6. The second defendant did not take a neutral position in this case, even when its own insurance company had investigated the claim and had approved it. The second defendant, being in a position where it had no real way of knowing one way or the other if the complaint was true, has done its best to actively support the first respondent and blacken the character of the applicant.
7. Philip Downing pursued lines of cross examination which were inappropriate. He persisted in cross-examining her at length to prove that she suffered from some mental condition as a result of her previous history New Zealand, even when all of the evidence in the case, including the evidence of the first respondents own specialist, was that by the time she arrived in Melbourne she was completely well, undergoing no treatment and the effects of her previous breakdown in New Zealand had resolved. He insisted on cross-examining her to suggest that the word "perv" was never used by Isabella when he well knew that Isabella's evidence would contradict this. He suggested in his final submissions that the applicant's mother had fabricated evidence, without there being any evidence at all to support such an accusation.
8. It may be said on the second respondent's behalf that it was unrepresented and that Philip Downing knew no better. However, I note that he had had the benefit of the WorkCover insurance investigation. He had also had the benefit of legal advice both before and during this hearing.
9. In my view it is appropriate having regard to all of the above matters to make an award for aggravated damages against the second respondent in the sum of $20,000.
10. Aggravated damages is sought against Abdallah because of his conduct in targeting the applicant as a vulnerable young girl when he was in a position of authority. Abdallah sought to sexually assault the applicant when she was incapacitated by a disabling medical condition.
11. The applicant also relies upon his conduct in attempting to persuade Isabella to lie in her answers to avoid incriminating him, his denial in the witness box of the conduct and the suspicion surrounding the relationship between his liability in this case and that of the second respondent.
12. I have decided not to make a further award for aggravated damages against the first respondent. I have taken into account the circumstances of Abdallah's targeting of the applicant in assessing the amount of the general damages in this case.
13. As to Abdallah's conduct in attempting to persuade Isabella to lie in the witness box, I take into account that he does not appear to have had any sensible legal advice before deciding to take this course. I am concerned that his actions may amount to an attempt to pervert the course of justice. However, this is not the appropriate forum to address this very serious issue.

1. In its Points of Claim, the applicant also seeks legal costs and compensation for out-of-pocket expenses.
2. In the event that this claim is pursued I will list this matter for further hearing in chambers and make orders for the filing of written submissions in relation to this claim.