(a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

1. The explanatory memorandum to the 2010 legislation comments on the section as follows:

Clause 8 defines direct discrimination. Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of the attribute. Clause 8 differs from [the earlier legislation] as it removes the requirement to prove that the treatment was less favourable than the person would treat someone without the attribute or with a different attribute, in the same or similar circumstances and replaces the "comparator test" with a new test based on unfavourable treatment. The intention of the new definition is to overcome the unnecessary technicalities associated with identifying an appropriate comparator when assessing whether direct discrimination has occurred.

1. The list of protected attributes in section 6 includes lawful sexual activity.
2. Section 18 of the Act provides:

An employer must not discriminate against an employee -

(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment; or

(b) by dismissing the employee or otherwise terminating his or her employment; or

(c) by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or

(d) by subjecting the employee to any other detriment.

1. Both the applicant and Ms Anderson gave evidence. Each made written statements and each gave viva voce evidence. Relevant paragraphs of Ms Anderson's written statement speak to the allegations put against Mr Martin to which she responded generally:

I became aware in October 2012 John was told by the Principal at Padua College not to see me at the [Pelican Park] Gym or to assist me with my training program. I did not know why this occurred.

John did not contact me from this time in October. It is possible I sent a text to him on the day I finished school and he wished me well in my final exams.

John has been accused of 'grooming' me for a relationship over a number of years. No one has ever told me what that word means. I refer to the Oxford Dictionary definition of this word. I emphatically deny that I was groomed by John while I was a student at Padua College. I categorically reject any suggestion that, while a student at Padua College:

(a) John physically touched me in an inappropriate or sexual manner;

(b) that I felt emotionally manipulated by John; and

(c) John behaved in a manner that made me feel uncomfortable.[9]

1. Save for explanation about an email mistakenly sent to Mr Martin but intended for another teacher with the same surname, Ms Anderson's evidence was not challenged at all.
2. In his written statement, Mr Martin set out the history of his employment at Padua, pointed out that Ms Anderson was at a different campus in years 2011 and 2012 and explained their contact via the Pelican Park gym, confirming that occasionally they had sent texts to arrange times to train together at the gym. He stated that following the October 2012 meeting with Mr Houlihan, apart from an email mistakenly sent to him, he had no further contact with Ms Anderson until mid-December 2012. He stated that an intimate relationship commenced in late December 2012 and the couple have lived together since about April 2013. In cross-examination he confirmed that the intimate relationship commenced on 27 December 2012.
3. Mr Houlihan (the school principal) made a comprehensive statement describing how he had handled the matter on behalf of the school. Annexed to his statement were documents including:
   • Ms Anderson's school reports in relation to the subjects Mr Martin taught her in the years 2007, 2008, 2009 and 2010;
   • Various in-house emails and diary notes;
   • Various letters;
   • Various allegations put to Mr Martin by Dumais Workplace Solutions and Mr Martin's responses to those allegations; and
   • The investigation report prepared by Ms Dumais which included some anonymised witness statements.
4. Counsel for the respondent properly reminded the Tribunal that this matter was neither an unfair dismissal claim nor a serious misconduct claim, the latter to be heard by the Victorian Institute of Teaching in due course. There are, he submitted, key distinctions between the three forms of litigation and it is important that the legal considerations for establishing such matters not be confused.
5. For Mr Martin to succeed, he must show that a substantial cause of the respondent's action in dismissing him was because of the claimed attribute, that is, the attribute of lawful sexual activity. He must establish a causal connexion between the treatment complained of and the protected attribute. Direct discrimination (as in s 8) only occurs where the unfavourable treatment occurs because of a person's protected attribute. Of course, it is not uncommon for discriminatory conduct to be based on multiple reasons, but the protected attribute must be a substantial reason for it; it does not have to be the only reason or a dominant reason.
6. The applicant's counsel, in his written submissions, referred to the discussion of this matter in Stern v Depilation & Skincare Pty Ltd [10]. Deputy President McKenzie stated that-

The attribute need not be the only or dominant reason for the treatment, but must be a substantial reason for it. This means that the attribute must be a reason of substance for that conduct. The motive of the discriminator is irrelevant, and it is also irrelevant whether the discriminator was aware of the discrimination or considered the treatment less favourable.

1. In that case, the Tribunal held that Ms Stern's pregnancy was a 'substantial reason' for her redundancy. The Tribunal found that, although the 'dominant reason' for the redundancy was a downturn in business, the factor which 'actuated the minds' of the decision-makers who selected Ms Stern for redundancy was the fact that she was a part-time employee working reduced hours. The only reason she was working those hours was because she was pregnant and therefore, pregnancy was a substantial reason for the conduct.
2. In cross-examination, Mr Houlihan was asked about his motivation in terminating Mr Martin's employment and about the details of his meeting with Mr and Mrs Anderson in March 2013. It was put to him that the sexual relationship was at the forefront of their discussions; Mr Houlihan explained that when the Andersons came to him they said they had heard from another parent that Mr Martin was in a sexual relationship with their daughter, as distinct from stating the relationship existed. He told the Tribunal that the parents' complaint was that the school environment had allowed boundary transgressions that then created a trusting intimate relationship with their daughter. He said that "they came to me with a concern of, in their words, grooming". Further they said they were concerned that the sexual relationship might be the outcome of a transgression of boundaries over a number of years.
3. It was put to him that the sexual relationship was what was vexing the Andersons most and his response was as follows:

"No, they were really concerned that an environment had been allowed to enhance a relationship between the teacher and their daughter. They were really concerned at the meeting about how this could happen, how their daughter could have been taken into a trusting relationship with a teacher who was supposed to be friendly, but not their friend. And, again as I said to them I didn't have any knowledge of a sexual relationship at that stage. They were acting on a tip-off from another person. My consequence at that meeting was really to deal with the professional misconduct and the alleged transgressions of boundaries that they said had happened. And they'd obviously taken some advice, I don't know from whom. They came in with an extreme amount of information.

1. Counsel for the applicant spoke to his written submissions. His principal contention was that in deciding to dismiss Mr Martin from employment, the fact of the sexual relationship between Mr Martin and Ms Anderson actuated the mind of Mr Houlihan. This primary fact caused or inspired the investigation and the report. It was, he submitted, critical to the finding of 'grooming' and critical to the investigator's finding of serious misconduct.
2. He submitted the Tribunal should make that finding for a variety of reasons.
   • When confronted with purported serious allegations of boundary blurring in October 2012 but without any evidence of sexual conduct in October 2012, Mr Houlihan did not raise all of the allegations potentially levelled against Mr Martin. The result was the cautionary letter referring to gym contact and electronic communications and Mr Martin duly complied with those directions;
   • Although there is doubt about who mentioned what in the October meeting between Mr Houlihan and Mr Martin, it is clear the subject of sexual activity was ventilated, even if only by way of query from Mr Houlihan and denial by Mr Martin;
   • In March 2013, when Mr Houlihan received an oral, and then formal written complaint from Mr and Mrs Anderson, its motivation and framing was the fact of the admitted lawful sexual activity that had commenced between Mr Martin and Ms Anderson;
   • The March 2013 complaint of Mr Martin's conduct caused an investigation to commence and a report to issue; and
   • The report took as its point of focus the alleged grooming by Mr Martin of Ms Anderson and the fact that such alleged grooming apparently resulted in a sexual liaison after Ms Anderson had completed school.
3. In making this submission, counsel referred to the following:
   • Mr Houlihan's handwritten note dated 13 March 2013, recording his meeting with Mr and Mrs Anderson at 1.20 pm. The opening paragraphs read as follows:

"Parent (chooses not to tell) rang Mary on Thursday night was to inform that there is a sexual relationship between Samantha and John M

• Mr and Mrs Anderson's letter to Padua College on 13 March 2013, the opening paragraphs of which read as follows:

"We write to you in regards to our conversation with you held this afternoon approximately at 1.30 pm.

As you are now aware we came to speak to you with the information that John Martin, teacher at Rosebud Padua is in a sexual relationship with our daughter Samantha Anderson."

• Paragraph 30 of Mr Houlihan's witness statement wherein he states:

I met with Peter and Mary Anderson later that day and they immediately informed me that John was in a sexual relationship with Samantha which had started not long after Samantha finished her year 12 studies at Padua."

1. Counsel submitted that in the context of all of the above, the Tribunal ought not permit the respondent to construct a conceit for the purposes of avoiding liability for its discriminatory and unlawful conduct in breach of the Act - namely that Mr Houlihan paid no regard to the fact of the sexual relationship when acting to dismiss Mr Martin from employment. The lawful sexual activity was, counsel submitted, a substantial reason for the dismissal. Indeed counsel emphasised this in his submissions when he submitted it was a "complete distortion to suggest that the lawful sexual activity was not something [Mr Houlihan] considered, let alone a substantial consideration".
2. Counsel for the respondent also provided helpful written submissions and he too spoke at length to those submissions. Both counsel provided a comprehensive folder of relevant authorities. The starting point of Dr Freckleton's submissions was-

The key issue in contest before the Tribunal is the reason/s why the respondent through Mr Houlihan undertook the impugned actions in respect of the applicant and, more specifically, whether the applicant has satisfied the Tribunal on the balance of probabilities that a substantial cause of the impugned actions was that the applicant had entered a lawful sexual relationship with Ms Anderson.

1. Counsel then continued his submissions by setting out a distillation of the relevant discrimination law to which I must have regard. He submitted as follows:

In order to succeed the applicant would need to discharge his onus to make out his case on the balance of probabilities.

A finding of discrimination should not be lightly inferred, especially when there is an absence of clear evidence linking the impugned behaviour to an attribute.

In a case such as this where the allegations are serious and the decision-maker should proceed with circumspection, the principles outlined in Briginshaw v Briginshaw[11] apply - that is, that in circumstances where grave allegations are made, the Tribunal should carefully weigh the evidence and not lightly conclude that conduct of a scandalous or serious nature has taken place.

The motive of the person accused of discrimination is not to the point.

The burden of proof resting upon the applicant includes both the proof of the necessary conduct and that it amounted to discrimination as a matter of law.

In a discrimination case depending on circumstantial evidence, the trier of fact must consider the weight to be given to all the circumstances put together.

There is no reverse onus in a discrimination action such as exists by statutory provision in the adverse action cases under the Fair Work Act 2009 (Cth).

However, the principles in relation to what needs to be established in evaluating the employer's reasons for terminating employment are relevant; in particular the significance of evidence from the employer as to why they took the action in dismissing the employee.

A distinction is to be drawn between the substantial and operative reason for the impugned conduct and the immediate or proximate cause.

It is necessary for the applicant to succeed that he prove that a substantial cause of the respondent's action in treating the applicant unfavourably, namely dismissing him, was because of the claimed attribute.

Care needs to be taken in the drawing of inferences: there needs to be a "foundation of objective facts"; without "positive proved facts" allegations remain in the realm of speculation or conjecture.

1. With these submissions in mind, counsel referred to Street CJ, citing Loreburn L.C. in Barnabas v Bersham Colliery Co[12], as set out in Gurnett v Macquarie Stevedoring Co Pty Ltd: [13]

The plaintiff must prove his case; and although he may establish a state of facts which lead one to think that his version is quite a possible version of what took place, he must do something more than show a state of facts which is consistent with one view or another view...

His Honour then continued in like vein stating that -

A guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds. In contradistinction to such a conjectural opinion, an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.

1. Counsel then referred to Kapoor v Monash University & Anor[14], a case where Dr Kapoor alleged discrimination on the grounds of, inter alia, race, religion and status as a parent against the university and two of its employees. At paragraph 42 Chernov JA observed:

...the mere fact that the belief of the second respondent was erroneous is irrelevant for the purposes of the legislation and does not turn the conduct from being non-discriminatory to discriminatory. There is no suggestion or finding that the second respondent did not hold such belief and merely used it as a pretext to mask a true reason which was race related. Consequently the impugned conduct did not amount to discrimination...

1. Responding to the applicant's submissions about the central issue of the sexual activity, particularly at the time when the parents made their complaint, counsel contended that what was motivating the parents when they visited Mr Houlihan was an issue for debate. He said there was a range of matters troubling them; they were worried about their younger daughter who was still a student at the school, and they were worried generally about the blurring of boundaries by Mr Martin. Ultimately, counsel submitted, it did not matter what motivated the parents; what did matter was what generated the decision by Mr Houlihan.
2. Mr Houlihan had, he submitted, responded to the criticisms of the earlier October 2012 incident and of the Dumais report and dealt with them. In relation to the October incident, counsel contended that it was of little relevance; he said that limited issues were raised and that it showed a headmaster who was responsive, prudent and circumspect. He was troubled that there had been some blurring of the boundaries and he gave clear instructions and reminded the teacher of his obligations.
3. Dr Freckleton submitted I should look to the content of the Dumais report but I have already expressed my view about that. He submitted that in March 2013, information was present which required investigation and the investigation was initiated in accordance with protocols and in a responsible appropriate way. He contended that criticism of the Dumais report was not really relevant to these proceedings; he said she was trained as a lawyer, had some skills in the workplace area and she was selected on advice to do the investigation. He submitted that she undertook a rigorous and extensive investigation.
4. Speaking of the introduction of what he described as the "g" word, counsel submitted this was something for which the respondent should make no apology and was something upon which it should reflect. Counsel stated that the respondent's reasoning process was sound, fair and proper. He submitted that the introduction of the "g" word "does not mean that the lawful sexual relationship between Mr Martin and Ms Anderson substantially caused the decision to stand him down and then to terminate his employment. They are different issues. A sophisticated and thoughtful analysis of them demonstrates that this is not casuistry, it's not sophistry, it's not a conceit, it's simply careful fair analysis - that's what the school did. It's what it should have done and that is the essence of its defence..."
5. Counsel placed great emphasis on the proposition that the only evidence before me was that Mr Houlihan took appropriate action to investigate. He submitted that although the contents of the 41 page report that ensued might or might not be impugned in some respects it was, as he put it, a manifestly responsible investigative exercise. He took the Tribunal back to the relevant section of Mr Houlihan's statement dealing with the decision making process.
6. There the principal stated as follows:

The report noted that the ultimate findings of fact were to be made by me as the decision-maker. I formed the view that the investigation had been undertaken carefully, fairly and soundly. After careful consideration I accepted the proposition that 22 of the 25 particulars were substantiated and I considered that this had a sound base in the statements that had been taken. I also concluded that in respect of each of the 22 proven particulars, John had associated with Samantha in a teacher-student relationship and had transgressed professional boundaries in a continuing and unacceptable way. It was my view that this was a very serious form of inappropriate conduct for a teacher to engage in. I also considered the impact of John's actions on the Anderson family and the safety of any other students in his supervision, one of whom was the sister of Samantha.

I did not make the decision to terminate John on the basis of his having entered into a sexual relationship with Samantha. The issue for me was that he had engaged in a significant number of acts of boundary blurring that were unacceptable for a teacher and in breach of his ethical obligations.[15]

1. In summary Dr Freckleton submitted there had been no discrimination within the meaning of the term. He submitted there was no direct discrimination by the treating of a person with the named attribute in an unfavourable way. In passing he drew the Tribunal's attention to section 25 of the Act, although I am not persuaded there is any evidence to support this submission. The section states-

(1) Nothing in section 16 or 18 applies to discrimination by an employer against a person or employee if-

(a) the employment involves the care, instruction or supervision of children; and

(b) the discrimination is reasonably necessary to protect the physical psychological or emotional wellbeing of the children.

1. In conclusion he submitted that, to the extent that the Tribunal might find it necessary to reflect on the relative credibility of the two witnesses (Mr Martin and Mr Houlihan), Mr Houlihan had composed himself with dignity and patience throughout a difficult experience in the witness box and gave every impression that he was a thoughtful, reflective individual and he should be accepted as a witness of truth and reliability.

1. Both counsel made submissions about the allegation of grooming. I accept what Mr Harrington submitted, namely that the issue of grooming was front and centre of the report and permeated the process from the minute it was alleged by the parents. It was a serious allegation and led to serious findings. Again, without alluding to all of the individual findings of the report, the first (and I would say major) finding in the executive summary was that Mr Martin had engaged in grooming conduct.
2. Dr Freckleton submitted that the issue of grooming and the lawful sexual activity were two entirely different matters but, in this case that allocation is easier said than done. My view is that Mr Harrington described it accurately when he proposed that the report had worked backwards from the sexual relationship and viewed all the retrospective evidence through the lens of grooming. He submitted that the Dumais report started with the sexual relationship and worked backwards in time to attack the bona fides of an existing supportive and non-sexual relationship between a student and teacher.
3. Notwithstanding Dr Freckleton's submission about this allegation, it strikes me that taken in context with this matter, the constant mention of grooming carries with it the notion of an inevitable end result of sexual conduct. It is not suggested that grooming in this context relates to anyone's personal appearance, rather, used in this sense it carries with it a clear suggestion of action deliberately undertaken with the aim of establishing some emotional attachment so as to enable ultimate exploitation, usually sexual. The fact that the term is often associated with child sexual abuse or paedophilia adds to the unpleasant aura that surrounds the word and the inevitable sexual innuendo that accompanies it.
4. The letter from Mr and Mrs Anderson to Mr Houlihan on 13 March complains, inter alia, of grooming patterns and the exploitation of adult/child power balance. But the letter commences with the assertion that "as you are now aware we came to speak to you with the information that John Martin... is in a sexual relationship with our daughter". [16] [my underlining]
5. Mr Houlihan's handwritten note of the meeting (13.3.2013) commenced with the statement that "parent (chooses not to tell) rang Mary on Thursday night to inform that there is a sexual relationship [my underlining] between Samantha and John M. Sam is living at John Martins".[17]
6. Paragraph 30 of Mr Houlihan's statement echoes this focus. He stated -

I met with Peter and Mary later that day and they immediately informed me that John was in a sexual relationship [my underlining] with Samantha which had started not long after Samantha finished her year 12 studies at Padua."

1. When it was put to him that the sexual relationship was at the forefront of what the Andersons complained of, Mr Houlihan responded that "they clearly stated their concern that the grooming relationship between teacher and student had happened over a number of years and they wanted it investigated."
2. As Mr Harrington put it, it lacks all credibility for Mr Houlihan to assert that he paid little or no regard to the sexual relationship between Mr Martin and Ms Anderson in reaching the decision to dismiss. Counsel submitted it was a substantial consideration arising from the manner in which the report was constructed and reasoned. He put it that the lens through which the investigation occurred was a grooming one and that became a central allegation. He also posited that the attempt by the respondent to quarantine the lawful sexual activity which actuated the investigation and report was entirely artificial.
3. It may well be that the Andersons were less concerned about the sexual relationship and more concerned about the school environment however they were not called; but the fact of the sexual relationship was the primary focus in their correspondence. It featured in the first sentence of Mr Houlihan's notes and in paragraph 30 of his witness statement he attested to the fact that when he met with them they "immediately informed [him] that John was in a sexual relationship with Samantha".
4. In considering the circumstantial dilemmas posed by the competing submissions, the case of Nominal Defendant v Owens[18] has provided some useful guidance about the drawing of inferences. (A quotation from this case already appears at para 61 herein). Owens was a case involving a transport accident where one occupant of the vehicle was injured and the other was killed. The issue was whether one of them in particular was the driver, it being established that the relevant driving was negligent. The trial judge found that the deceased was driving at the relevant time and that the other occupant's injuries were the result of the deceased's negligent driving.
5. On appeal, Muirhead J contended that the nub of the matter was whether, upon the evidence before him, the trial judge was justified in drawing relevant inferences. At page 132 he set out the following:

...this court must, especially where questions of credibility have had little influence on the trial judge's findings, examine the evidence and such findings to ensure that the conclusion is in fact an inference rather than a guess, a theory or conjecture. In Luxton v Vines[19] the majority of the High Court cited a then decision of that court in Bradshaw v McEwans Pty Ltd 1951 (unreported), a case referred to in several other authorities. The court there said in dealing with the civil standard of proof: "In questions of this sort, where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture...But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty; it is not to be regarded as a mere conjecture or surmise..."

The majority in Luxton v Vines, supra, posed many questions and hypotheses. There the plaintiff had to rely on inferential processes to establish both the circumstance and the cause of his injury and negligence itself. They concluded: "Any answer that you give to such question is a guess. All lies in conjecture. The fact is that whatever reasons you can find for one explanation of the accident, reasons of equal sufficiency or insufficiency exist for other explanations. The circumstances give rise to nothing but conflicting conjectures of equal degrees of probability and no affirmative inference of fault on the part of a driver of a motor car can reasonably be made"

1. His Honour continued by citing Lord Shaw who distinguished inference and conjecture in Kerr v Ayr Steam Shipping Co Ltd [20] as follows:

I am responsible, I observe, in some of these decisions for raising a distinction between an inference and a conjecture. The distinction is as broad as philosophy itself. It is that an inference rests upon premises of fact and a conjecture does not. Now when you come to the region of inference, my Lords, no one has ever suggested that the inference should be in syllogistic form so that all the points of its premises shall with apt and exact completeness justify the conclusion reached.

1. For the applicant to succeed the following findings must be made:
   • That the protected attribute was lawful sexual activity;
   • That the applicant was dismissed from his employment; and/or
   • That he was subjected to any other detriment;
   • That the treatment to terminate was because of the attribute;
   • That there was a causal link between the treatment complained of and the protected attribute; that is, between the termination and the lawful sexual activity;
   • That the termination was unfavourable treatment; and
   • That the protected attribute was a substantial reason for the decision; and
   • Whether or not the protected attribute was the dominant or only reason for the decision, it was a substantial reason.
2. Unlike the bulk of the cases cited before me, in this matter I am required to find only that the attribute was a substantial reason for Mr Houlihan's treatment of Mr Martin; not the absolute reason for it, not the only reason, not the dominant reason but a substantial reason for it.
3. The standard of proof required is of course on the balance of probabilities but having regard to the strictures set out in Briginshaw.
4. The evidence being what it is, the only decision in dispute is whether the decision of the respondent to stand Mr Martin down and subsequently to terminate his employment was substantially because of the protected attribute. Mr Houlihan says it was not. He insists his decision was based on a careful consideration of the report he instigated, on the fact that 22 out of 25 of the alleged particulars were found proved by the investigator, that those findings were enough, of themselves, to warrant termination, that these might have been the outcome of boundary transgressions committed over a number of years and that they constituted very inappropriate conduct; further in arriving at his decision he also had regard to the impact of Mr Martin's actions on the Anderson family and on the safety of other students.
5. In his closing submissions Mr Harrington submitted that it lacked credibility for Mr Houlihan to assert that he had little or no regard for the sexual relationship between Mr Martin and Ms Anderson in reaching the decision to dismiss Mr Martin. He contended I should find it was a substantial consideration arising from the manner in which the Dumais report was constructed and reasoned.
6. I accept Mr Harrington's submission that when Mr Houlihan received an oral, and then formal written complaint from Mr and Mrs Anderson, its motivation, framing and leading accusation was the fact of the admitted lawful sexual activity that had commenced between the applicant and Ms Anderson. It was a matter of substance.
7. As I have already set out, the correspondence, the handwritten note and Mr Houlihan's statement all point to this factor; the sexual activity was not just mentioned en passant; it was at the forefront of the complaint and its aftermath. Of course it is not beyond imagination to infer (albeit gratuitously on my part) that the complaint Mr Houlihan received from Mr and Mrs Anderson would have been the epitome of any principal's worst nightmare - and not just a principal as thoughtful and articulate as Mr Houlihan.
8. Notwithstanding, it beggars belief to conclude that he put the lawful sexual activity to the back of his mind and concentrated solely or emphatically on all the other issues.
9. I accept that the 22 allegations found proved by Ms Dumais might have been sufficient to warrant termination but conversely, were there to be a proper scrutiny of the investigation process, they might not.
10. True it is that much of the evidence is circumstantial and I am thus required to draw inferences about what drove Mr Houlihan's decision to terminate Mr Martin's employment. Although Mr Houlihan was a polished witness, I found his denials that the lawful sexual activity was not part of his reasoning and subsequent decision unconvincing, particularly given the strength of the early accusations and the atmosphere that permeated the subsequent events.

1. I am persuaded that the evidence before me is sufficient to elevate my finding beyond that of mere conjecture, or guess or surmise. These are grave allegations and I have not taken the evidence lightly and I have been conscious of the need to weigh the competing submissions with a degree of circumspection. As a consequence I am comfortable in drawing the inference that, in terminating Mr Martin's employment, Mr Houlihan treated Mr Martin unfavourably because of his lawful sexual activity with Ms Anderson and that the attribute was a substantial reason for the decision he made.
2. I find that in standing Mr Martin down and then dismissing him, Mr Houlihan directly discriminated against Mr Martin by treating him unfavourably because of his lawful sexual activity with Ms Anderson.
3. I accept that the reasons for dismissal were multi-faceted but the lawful sexual activity was a substantial reason for the decision and I so find.

1. Relevantly section 125 of the Act provides:

After hearing the evidence and representations that the parties to an application desire to adduce or make, the Tribunal may:

(a) find that a person has contravened a provision of Part 4, 6 or 7 and make any one or more of the following orders -

(ii) an order that the person pay to the applicant, within a specified period, an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention;

1. The applicant seeks relief by way of compensation for past economic loss, future economic loss and compensation for pain and suffering. On the first day of the hearing, there was a suggestion, albeit faint, that the matter of compensation should only be dealt with after the relevant findings had been made by the Tribunal but having regard to the closing submissions and the content of the written submissions, I take it that this has been overtaken by events. In relation to past economic loss, counsel submitted that, on the basis of the applicant's annual salary of $87,000.00, the claim for $108,750.00 represented a 15 month period from the date of termination to the date of commencement of this action.
2. Dr Freckleton submitted that in considering section 125 and the question of whether relief should be granted, it is necessary for the Tribunal to have regard to the full context of what took place. He submitted that, were the Tribunal to consider a substantial contribution, it should at least factor in the other very significant contributions which he would say were at least dominant and substantial.
3. There is much in what he submits and in any event, the Tribunal heard no evidence about Mr Martin's attempts to gain alternate work were any such attempts made. Certainly he could not gain work as a teacher but that would not have precluded him from other endeavours for which he might have been suitably qualified.
4. Doing my best with the evidence I have concluded the award for past economic loss should be fixed at $80,000. In arriving at this figure I have taken into account the fact that the lawful sexual activity was not the sole reason for dismissal as well as the absence of any evidence indicating any attempts to obtain alternative employment.
5. The same reasoning applies to the application for future economic loss. Mr Martin is not without other skills and there is no evidence that he has tried and failed to find alternate employment.
6. The remaining claim is for pain and suffering. In relation to this, there is some evidence, but it is not particularly expansive. Ms Anderson spoke of Mr Martin's feeling of depression and devastation as well as his feeling of helplessness. In his statement, Mr Martin alluded to a medical certificate dated 27 May 2013 that he had sent to his employer. It referred to "his diagnosed illness". He continued by saying that at the time he was suffering clinical depression and was under the care of a GP and psychologist. He stated he rarely left the house and was unable to function. At the hearing, the Tribunal was given a letter from Dr Paul Muirden dated 29 August 2014 which read as follows:

I saw him on 2 occasions in May-June 2013 & spoke with him on the phone on another couple of occasions. He had had issues with a relationship & work which resulted in him stopping work.

At that time he was very anxious. He was having great trouble sleeping. He was continually worrying about the same things over & over. He had stopped exercising at the gym, which is one of his greatest pleasures.

He was obviously depressed. I referred him to Greg McCracken, a counsellor, who he subsequently saw.

1. Mr Harrington referred me to a recent decision in Richardson v Oracle Corporation Australia Pty Ltd [21] and submitted I ought have regard to the analysis in that matter. Richardson was a matter on appeal from a decision that Ms Richardson had been sexually harassed and damages of $18,000 had been ordered by way of compensation. On appeal that was set aside and an order was made granting compensation of $130,000. Kenny J provided an in-depth analysis and spoke to the changing community attitudes. At [96] she stated:

I begin by observing that, in the context of damages for personal injury, there is reason to believe that community standards now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before. This was the assessment of the Victorian Court of Appeal in Amaca Pty Ltd v King [2011] VSCA 447. I refer to this case only to demonstrate the Court's adoption of this proposition in 2011 and its subsequent effect in other cases more closely akin to the present case.

1. Emphasising that a significant value is now placed on the value of loss of enjoyment of life her Honour continued at [103]:

The same general approach to the assessment of damages in Victoria is also evidence at a tribunal level. In Tan v Xenos (No 3) [2008] VCAT 584 her Honour Judge Harbison, ....awarded damages in the sum of $100,000 for sexual harassment in contravention of s 87 of the Equal Opportunity Act 1995 (Vic) even without medical evidence as to the effect of the sexual harassment on the victim saying at [556]

"In my view, there should not be a perception that awards of damages in this jurisdiction should be set at some lower rate than awards for comparable cases in the Courts. The purpose of the award of damages is to attempt to measure, in monetary terms, the hurt that has been done to the Complainant by the Respondent's act of harassment. My approach should mirror the approach that would be taken if this case were to be heard in a Court instead of a Tribunal."

1. Dr Freckleton submitted that the Richardson decision was to be distinguished on the basis that it was in a different context and that there had been considerable expert evidence about the impact of the harassing conduct on the particular applicant. That may be so, and it is true, as Dr Freckleton put it, that the evidence is thin, but nevertheless Mr Martin suffered great distress and humiliation and even though the available medical evidence is slight, what there is speaks to a period of unwellness, of clinical depression, of the need for counselling and an indication that this occurred.. Again doing my best with the materials before me, I think a fair and proper award of compensation for pain and suffering would be $10,000.00.
2. The Tribunal's orders are as follows:

Within 30 days the respondents are to pay to the applicant the sum of $90,000.00 made up as follows:

[†] The previous version of these reasons mistakenly referred to 1992. They have been corrected by an order of 16 November 2015

[1] Exhibit CH2 to statement of Mr Houlihan

[4] [1938] HCA 34; [1938] 60 CLR 336

[†] The previous version of these reasons mistakenly referred to 1992. They have been corrected by an order of 16 November 2015

[5] Para 27 et seq Particulars of Claim and para 21 herein

[9] Paragraphs 8 - 10 Statement Samantha Anderson

[10] [2009] VCAT 2725

[11] [1938] HCA 34; (1938) 60 CLR 336

[12] (1910) 103 LT 513

[13] (1955) 72 WN (NSW) 261 at 264

[14] [2001] VSCA 247 at [42]

[15] Para 54 and 55 of Mr Houlihan's statement

[16] Exhibit CH 7 to statement of Mr Houlihan

[17] Exhibit CH 6 to statement of Mr Houlihan

[18] 22 ALR 128, 132-3

[19] [1952] HCA 19; (1952) 85 CLR 352

[20] [1915] AC 217, 233

[21] [2014] FCAFC 82