1. VCAT's jurisdiction to hear and determine the applicant's claim is set out in section 125 of the EO Act. The hearing before me was limited[1] to the question of whether the respondent is liable for the alleged contraventions[2] of the EO Act.
2. I heard the parties' evidence on 31 March to 2 April 2025 and oral submissions on 15 May 2025 and reserved my decision.
3. The applicant provided two statements and was cross-examined about them. The applicant's psychologist, Claudia Hounslow, and the applicant's doctor, Laila El Shanawy provided reports[3] and were cross examined. Trudy Clapp, a therapist, formerly a member of the team managed by the applicant, and now a key supervisor with the respondent, provided a statement and was cross examined. The following three people were summoned by the applicant to give evidence and be cross examined:
   1. Amber Ferrier and Joel Polkinghorne who were therapists and members of the applicant's team (both of whom still work with the respondent organisation); and
   2. Sarah Dobbie, formerly the applicant's manager, and at that time the Manager of Youth Services with the respondent.
4. I have not here set out the medical and psychological evidence. It may have been relevant to the victimisation claim but was not in my view, because of my findings set out later in these reasons. The medical and psychological evidence may be relevant to the compensation claim, but I have as yet heard no submissions about that. There was nothing in the medical or psychological evidence that was inconsistent with the applicant's evidence in the proceeding.
5. For the respondent, Ray Blessing, former CEO, provided a statement and was cross examined. Also, for the respondent, three more people each provided a statement and was cross examined. They were:
   1. Kate Forer, Manager of People and Culture with the respondent at the time of the events complained of and now performing a similar role for Windana;
   2. Natalie Siegel, former Chief Operating Officer for the respondent who did not transfer to working with Windana; and
   3. Melanie Thomson, Director of Clinical Services for the respondent at the time of the events complained of and now Head of Adult Community Services at Windana.

1. There was no dispute that it is for the applicant to prove her case. Both parties submitted that the applicable standard of proof is the civil standard, the balance of probabilities. In GLS v PLP[4] (GLS) Justice Garde considered it was appropriate to take into account the matters listed in section 140(2) of the Evidence Act 2008 (Vic) (Evidence Act). Section 140 of the Evidence Act provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

1. The principle set out by Justice Garde in GLS, where he referred to the principles originally outlined in Briginshaw v Briginshaw[5] (Briginshaw) and to the Evidence Act, applies equally in this case. His Honour said:
   1. I accept that the Briginshaw principle is applicable. Whether evidentiary questions are considered under the common law or under s 140, the process of reasoning must necessarily be affected by the nature of the complaint, the nature of the subject matter, the gravity of the matters alleged and the consequences flowing from a finding of sexual harassment.
   2. As this is a case in which the matters alleged by the complainant represent serious misconduct by Mr PLP, strong evidence is required - clear and cogent - assessed with care and caution, before I can find that it is more probable than not that Mr PLP sexually harassed Ms GLS in the manner alleged.
2. Accordingly, before I can find that it is more probable than not that the alleged incidents of sexual harassment and victimisation occurred, there must be clear and cogent evidence, and I must assess it with care and caution.

(1) For the purpose of this Act, a person sexually harasses another person if he or she -

(a) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or

(b) engages in any other unwelcome conduct of a sexual nature in relation to the other person -

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

(2) In subsection (1) conduct of a sexual nature includes -

(a) subjecting a person to any act of physical intimacy;

(b) making, orally or in writing, any remark or statement with sexual connotations to a person or about a person in his or her presence;

(c) making any gesture, action or comment of a sexual nature in a person's presence.

(2) An employee must not sexually harass -

(a) another person employed by his or her employer; ...

If a person in the course of employment or while acting as an agent -

(a) contravenes a provision of Part 4 or 6 or this Part; or

(b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 4 or 6 or this Part -

both the person and the employer or principal must be taken to have contravened the provision and a person may bring a dispute to the Commission for dispute resolution or make an application to the Tribunal against either or both of them.

1. It is not disputed that applying these provisions the applicant, to succeed in proving her complaint against the respondent, must prove the following for each alleged incident of sexual harassment:
   1. that the alleged conduct occurred;
   2. that the conduct was unwelcome;
   3. that the conduct was of a sexual nature;
   4. if those things are proved, then that a reasonable person would have anticipated that the other person would have been offended intimidated or humiliated; and
   5. that the alleged perpetrator Mr Blessing was acting in the course of his employment.
2. Ms Kate Forer, who was the respondent's People and Culture Manager at the time of these events, said in her witness statement that she had worked closely with Mr Blessing for 10 years and found him to be 'affectionate, compassionate and friendly'. Ms Forer said he would spend time meeting and greeting staff and it was 'commonplace for him to spend a significant amount of time...talking to an employee one on one'. Ms Forer said she never saw him engage in any behaviour that caused her any concern.[6]
3. Ms Siegel, the respondent's Chief Operating Officer at the time of these events, said she had worked with Mr Blessing for over 12 years with the respondent. Ms Siegel said he is a 'warm and friendly' person, the 'type of person who gives his full attention to the person with whom he is speaking', and an 'open and friendly person'. Ms Sigele said over the years she did not see any conduct from Mr Blessing that she thought was inappropriate or sleazy.
4. Sarah Dobbie, the applicant's manager, worked with the respondent for nine years. In her evidence at the hearing, Ms Dobbie said the applicant's report was not the first time she had heard complaints of inappropriate behaviour by Mr Blessing. As set out later in these reasons, the instances of behaviour Ms Dobbie mentioned were relatively minor and were not put to Mr Blessing at the hearing. I mention that evidence here only because Ms Forer and Ms Siegel also gave some evidence about the past. Taking it all together, I can only say that none of this sort of evidence was of assistance to me. I could not give it any weight as showing that Mr Blessing was more or less likely than any other person to behave in the way the applicant complains of.
5. The respondent submitted that the applicant's written witness statement differs from the particulars of claim in regard to her evidence at some points. I was not persuaded that these minor differences indicated the applicant was not telling the truth when she made her statement or gave evidence.
6. The applicant gave evidence about Mr Blessing's visits to the Cranbourne office saying he had focussed unnecessarily on her.[7] On one occasion she said he focussed on her, swivelling his chair towards her in a way she said he did not do for others[8] and that his attention to her was noticed by someone else who remarked on it.
7. Mr Blessing said he would have asked the applicant about the ResetLife program because it was a new program.[9] Further, he said he had adopted a practice over 30 years of sitting down to speak with staff and so demonstrating the interest of a senior leader in them and their work.[10]
8. The applicant made no specific complaint about these interactions, and they do not constitute any offence under the EO Act. The evidence was not sufficiently specific for me to find that it corroborates the matters complained of.

1. The first alleged incident concerns Mr Blessing's behaviour at a social event in the Cranbourne office in late 2022. The applicant said the event was intended to promote networking between two programmes which were run out of that office.
2. According to the applicant's statement,[11] Mr Blessing stood very close to her which made her feel uncomfortable. Also, the applicant said he stared at her from across the room while he was speaking to someone else. The applicant said it made her feel uneasy and it was creepy, and she wanted him to stop. When cross examined, the applicant maintained that Mr Blessing stared at her weirdly.
3. The applicant remembered mentioning to her supervisor Sarah Dobbie that the way Mr Blessing looked at her made her feel weird. However, the applicant characterised this as a comment not a formal complaint and said she did not think about reporting it at the time. The applicant said she made a similar comment to her colleague, Trudy Clapp.
4. Ms Clapp agreed in her evidence that the applicant made such a comment to her.[12] Ms Dobbie was not asked whether the applicant had mentioned this incident to her.
5. Mr Blessing denied paying specific attention to the applicant at this event. He said he always made an effort to get to know new employees.[13] He said he had only a vague memory of this occasion and agreed it was possible he stood next to the applicant in a group. He said it was not possible he would have been looking at her when speaking to others because he always focuses on the person he is speaking to. In cross examination, he said he was sure of this even though he did not recollect the occasion particularly. He said he may have stood closer to her in order to hear what she was saying.
6. When cross examined about this event, the applicant maintained that there was not a large number of people. When it was suggested Mr Blessing was leaning in to hear the conversation, the applicant said it was not a noisy gathering and he did not need to be close to hear the conversation, although she agreed she was unaware of the extent of his hearing problem.
7. I accepted the applicant's evidence that Mr Blessing stood close to her and looked at her from across the room when he was speaking to others. I had no reason to doubt her recollection, while Mr Blessing had no particular recollection and said only that this was not his usual way of behaving.
8. The applicant says this conduct was unwelcome and I accept that evidence which is of course about her own state of mind.
9. Mr Blessing said he may have moved close to hear the conversation. I was not satisfied that he needed to stand close on that occasion so as to hear the conversation. There was no evidence that he mentioned any hearing problem at the time.
10. That does not mean Mr Blessing's conduct on this occasion was of a sexual nature. Standing close and then staring from across the room may not be good manners, but that does not make the conduct sexual. Something more is required.
11. The applicant properly submitted that the definition of 'conduct of a sexual nature' in section 93 of the EO Act is not exhaustive, that one instance of conduct can be sufficient to amount to harassment and that context is important, especially where the conduct may involve taking advantage of a position of authority.
12. The applicant referred to a passage from Vitality Works Australia v Yelda[14] in the New South Wales Supreme Court's Court of Appeal where McCallum JA observed:

The sexualisation of women in the workplace often isn't [explicit]. Innuendo, insinuation, implication, overtone, undertone, horseplay, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome...The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries.[15]

1. This is a helpful analysis. However, the circumstances of that case concerned a brazen sexual innuendo, which no one could miss. In this particular incident, looking objectively at the conduct described by the applicant, there was nothing sexual insinuated or implied or in the general context. The upper limit of the applicant's description is that Mr Blessing's looking at her was 'weird'. Further, I was not satisfied a reasonable person should have anticipated that this conduct would offend, intimidate or humiliate the applicant. Accordingly, the applicant has not proved that this was conduct in breach of section 93 of the EO Act.

SECOND ALLEGED INCIDENT - 'OGLING' AND 'LEERING' AT THE CHRISTMAS PARTY

1. On 15 December 2022, the respondent had a Christmas party at a venue in Frankston. The applicant at one point was standing in a group which included Ms Ferrier and Mr Blessing. The conversation was interrupted for a photo to be taken. The applicant says Ray Blessing told her she was doing a good job and had been mentioned in leadership meetings. The applicant says he was standing unusually close to her, around 30 to 40 centimetres, which made her uncomfortable. Further, she says, while speaking to her he was looking her up and down.[16]
2. After the photo was taken, the applicant says she and Ray Blessing were left alone and he moved closer to her and she says the way he looked at her was 'gross', he was 'leering and ogling' her and she felt objectified and humiliated.[17]
3. Later, Ray Blessing gave a speech, and the applicant was at the back of the room. The applicant felt Ray Blessing was looking right at her. During the party he was watching her, looking over at her while talking to other people and this made her feel uncomfortable, particularly after he had commented on her appearance as set out below.[18]
4. Mr Blessing's evidence was that 80 to 100 people were present, and he attempted to speak to each of them to thank them for their service and wish them a good holiday.[19] He said he was at the Christmas party for approximately three hours and left before it ended as he was tired having worked all week on the merger with Windana.
5. Mr Blessing said he did not specifically recall a conversation with the applicant at the Christmas party but said he was mindful to keep a respectful distance from all staff when talking to them. He said he may have leant in closer to the applicant when speaking to her so he could hear above the background noise which exacerbated his hearing problem. He referred to a photograph attached to his statement which shows him in the background speaking with the applicant with plenty of daylight between them.[20]
6. Mr Blessing said he liked to give positive feedback, and it was true the applicant's name had been mentioned in leadership meetings so he may well have spoken of her as he would of any staff member about positive performance.
7. In response to the applicant's evidence that he stared at her, he said he did not look at her particularly during his speech or at any other time during the party and that was not something he would ever do.[21]
8. When cross examined, the applicant said the photograph[22] was not of the time when she alleged Mr Blessing stood too close to her. Also, in cross examination she said that Mr Blessing's hearing issues did not explain him coming close to her because he did it when he was talking, not just when he may have been listening and because she said there was not a great deal of noise.
9. When cross examined, Mr Blessing continued to deny he had focussed on the applicant, while also maintaining he had no specific recollection of speaking to her at the party. He said he focusses on the person he is speaking to.
10. No other witnesses gave evidence that they had observed Mr Blessing looking at the applicant during the Christmas party.
11. I accept the applicant's evidence that Ray Blessing stood too close to her and that this occurred at times when he was speaking, not needing to lean in for the purpose of hearing her. Mr Blessing had no specific recollection, so his denials were based only on his assertion that he kept a respectful distance from everyone. The photograph showing he was at a respectful distance at one point does not mean this was always the case.
12. On its own, standing close is not necessarily conduct of a sexual nature. However, I also accept the applicant's evidence that Mr Blessing looked her up and down. I had no reason to doubt her recollection of this, when Mr Blessing's recollections were only general in nature.
13. I accept that the conduct was unwelcome. The applicant's evidence is that Mr Blessing standing close to her made her uncomfortable and that she recalled thinking the way he looked at her was gross and she felt objectified and humiliated.
14. I find that the combination of standing close sometimes and looking the applicant up and down was conduct of a sexual nature. The applicant used the words 'ogling and leering' which seem exaggerated to me. There was no evidence that Mr Blessing stared at any particular part of the applicant's body or used any suggestive gesture or expression. However, standing overly close without explanation and looking a person up and down is sufficient to amount to conduct of a sexual nature in some contexts, including here where it was preceded and followed by Mr Blessing's remarks which I consider below. It is not the most serious form of harassment, but a man standing close and looking a young woman up and down is sexual in nature.
15. As to whether a reasonable person in Mr Blessings position, having regard to all the circumstances, would have anticipated that the applicant would be offended, humiliated or intimidated by this conduct, I note that as was submitted for the applicant, she was a fairly new employee, had only met Mr Blessing on a couple of occasions, was much younger than him and as CEO, he was in a position of power and authority over her.
16. A reasonable person would anticipate that an unfamiliar older man who is in a position of authority standing overly close to a woman in that situation without offering any explanation, and looking her up and down, could not be anything other than offensive, humiliating and intimidating.
17. Accordingly, I find this conduct of Mr Blessing's was in breach of section 93 of the EO Act, although not in itself a particularly serious breach.

THIRD ALLEGED INCIDENT - INAPPROPRIATE TOUCHING DURING A PHOTOGRAPH

1. The applicant said that during the first conversation at the Christmas party, while she was standing with Ms Ferrier and Mr Blessing, Ms Siegel (the respondent's Chief Operating Officer) interrupted them to take a photo. The applicant said that in posing for the photo Mr Blessing put his hand around her waist in a way which felt quite intimate, and she felt his hand on her waist was tight and uncomfortable.[23] The applicant agreed this moment was captured in the photograph attached to Mr Blessing's statement.[24]
2. In the photograph, the applicant stands between Mr Blessing and Ms Ferrier who each have an arm round her while she has an arm round each of them. When cross examined, the applicant agreed that the photo shows an airgap between her body and Mr Blessing's but also noted that her shoulder is touching his and said it was a tight hold. The applicant also pointed out that the expression on her face is one of discomfort and said that the photograph showed Ms Ferrier holding her in a more relaxed way on the other side.
3. Mr Blessing's evidence about this was a little different. He said it was the applicant who joined a group where he was.[25] He agreed that they were asked to pose for a photo. He said it was the applicant who put her arm around him first. When cross examined about this, he said he now has no clear memory of the exact sequence of events and his written statement recorded what he recalled at the time he made it. When cross examined about the photograph, he did not agree it showed he was holding the applicant tightly. He added that he did not ask for that photograph and posed to be polite, as he did for many photographs that day.
4. I agree the applicant looks uncomfortable and her smile is forced. Mr Blessing may or may not be holding tightly. It is not possible to tell from merely looking at the photograph. I accept the applicant's evidence that she felt his hold was too tight and that this was unwelcome to her. That is consistent with what she later reported to Ms Dobbie.[26]
5. However, the evidence does not establish that the touching for the purpose of the photograph is conduct of a sexual nature. Looking at the evidence objectively, this is a conventional pose struck by three people consenting for a moment at the request of someone else. Merely holding a little tighter than necessary is not conduct of a sexual nature in those circumstances.
6. Accordingly, this does not amount to a breach of section 93 of the EO Act.

FOURTH ALLEGED INCIDENT - COMMENT ABOUT THE APPLICANT'S BODY

1. The applicant's evidence was that after the photo was taken, Mr Blessing turned to her and said something like 'you must work out a lot' or 'you must live at the gym'. The applicant said in her statement that she thinks she asked him what he meant by that, and he said something like 'you look really fit'. While the applicant could not remember the exact words, she said she felt the comment was related to him holding her waist and feeling her body when the photo was taken, as it was said straight afterwards.[27]
2. The applicant added that Ms Ferrier (the third person in the photograph) said something in response like '[the applicant] has to be fit to keep up with us'. The applicant said in her evidence 'Amber told me at some point afterwards that what Ray said was inappropriate and she [had] made that comment to deflect attention'.[28]
3. Ms Ferrier (who the applicant summoned to give evidence) said when asked that she could not recall exact words, but she heard Mr Blessing comment on the applicant's physical fitness. Ms Ferrier could not recall whether she said anything in response and could not recall whether Mr Blessing said these words after the photograph was taken.
4. When asked about her meeting with the applicant on the following day, Ms Ferrier said the applicant was teary and emotional, and when asked why mentioned a comment by Ray Blessing. Ms Ferrier could not recall exactly what the comment was.
5. Mr Blessing said he had no specific recollection of his conversation with the applicant or this group of people, including whether he said the applicant must work out or must live at the gym. He said he prides himself on treating colleagues with respect and the alleged words did not sound like something he would ever say to any person or colleague.
6. In cross examination, the respondent's counsel put to the applicant that Ms Siegel (who took the photograph) would have heard if the alleged comment had been made just afterwards. The applicant replied that Ms Siegel was not close enough for that. Again, it was put to the applicant that Ms Siegel would have been reasonably close to take the photograph and the applicant added that the words were not said while the photograph was being taken, but afterwards, only seconds later, but Ms Siegel had moved on.
7. Ms Siegel said in her evidence 'I am confident that if these comments had been made I would have recalled them'.[29] When cross examined, Ms Siegel agreed that it is possible Mr Blessing said the alleged words after she had moved on from taking the photograph and agreed that her witness statement meant that if she had heard the words said she would have recalled them.
8. Ms Dobbie said when she gave evidence (on summons) that at a Christmas barbeque the following week, the applicant told Ms Dobbie that Mr Blessing had touched her inappropriately and made inappropriate comments at the Christmas party. Ms Dobbie said the comments the applicant reported to her were that the applicant was hot like the weather and that it appeared she lived at the gym due to her physique. Ms Dobbie said the inappropriate contact described was a hug and a grab around the waist that felt inappropriate.
9. Despite Mr Blessing's denial, I accept that after the photograph was taken, he did say something about the applicant's body or physique, as she reports. His denial is a general one, based on what he thinks he would do, not a specific recollection, while the applicant's recollection is quite specific and is supported by Ms Ferrier's evidence.
10. It is likely that the reason Ms Siegel did not hear the comment is that she had moved away. The situation was that she was moving from one group to another taking photographs as she went. There is no evidence that she spoke to the people in the photographs other than to ask them to pose.
11. Beside Ms Ferrier's corroboration that Mr Blessing commented on the applicant's fitness, Ms Ferrier also attested that the applicant was emotional the next day and referred to a comment made by Mr Blessing.
12. There is also Ms Dobbie's uncontested evidence that at the Christmas barbeque the next week the applicant mentioned the comment about her fitness.
13. In contrast to Mr Blessing's evidence, the applicant's evidence is specific and supported by the evidence of Ms Ferrier, although Ms Ferrier did not recall whether the words were before or after the photograph.
14. I find that Mr Blessing made a remark about the applicant's physical fitness after the photograph[30] was taken. I accept the applicant's evidence that this was unwelcome conduct and that she felt it was made in relation to feeling her body while the photograph was taken.
15. In all the circumstances, I find that this remark was conduct of a sexual nature. It was not sexually explicit, not the worst kind of sexual harassment, but it was unwelcome conduct of a sexual nature.
16. As to whether a reasonable person would anticipate that the remark would offend, humiliate or intimidate the applicant, I note this was not a situation where two equals were discussing their physical fitness or exercise regime. It was an older man in a position of authority over a younger woman whom he does not know well, a man who has looked her up and down, has touched her body (apparently with consent for the photograph) and who then comments on it, with no context to justify such a personal remark. A reasonable person would expect the recipient of that comment in those circumstances to be offended, intimidated or humiliated.
17. Accordingly, this was a breach of section 93 of the EO Act.

1. The applicant's evidence was that after Mr Blessing had commented on her fitness, Ms Ferrier walked away leaving the applicant standing with him. At that point, another staff member joined them, and Natalie came to take another photo.
2. I do not consider it material that the applicant thought this other staff member was called Nadia and that the respondent says there was no employee called Nadia.
3. Someone commented that the temperature was hot. The applicant says Mr Blessing then turned and looked at her and said something like 'you wouldn't have a problem being hot'.[31]
4. Mr Blessing denied saying this. He said 'it would be totally inappropriate of me to describe a colleague in this way and is something I would never do. I know the environment was warm on the day and the air conditioning was less effective, but I also have no recollection of commenting on the temperature in the room'.[32]
5. I accept the applicant's evidence that Mr Blessing made this remark. I had no reason to consider the applicant fabricated her evidence. On balance, it is more likely the applicant's recollection is correct. Mr Blessing's evidence is based on his conviction that he does not speak to people in this way rather than on specific recollection of the events. The applicant by contrast has been consistent in her reporting of what occurred, starting with her remark to Ms Dobbie as she left[33] and then her discussions with colleagues the next day.[34]
6. I find that this remark was conduct of a sexual nature. I do not accept Mr Blessing was making a remark about the weather. It is uncontroversial that the word 'hot' in everyday slang when used in reference to a woman indicates she is considered sexually attractive.
7. A reasonable person in the position of Mr Blessing, an older authority figure in the company of a young woman quite junior in the organisation, and not closely acquainted with her, should have known that referring to her sexual attractiveness in a familiar way would be intimidating, offensive or humiliating.

1. The applicant said that when she decided to leave the function, she wanted to say goodbye to Joel Polkinghorne, a member of her team, and hesitated to do so because he was standing with Mr Blessing. However, she felt it was rude not to farewell one of her team members, so she went to do so, keeping a distance from Mr Blessing and spoke in a withdrawn manner to Mr Polkinghorne. The applicant stated that as she spoke to Mr Polkinghorne, Mr Blessing asked her for a hug, and she agreed because although she was uncomfortable she was unsure how to decline such a request from the CEO.[35]
2. The applicant said Mr Blessing hugged her, held her lower back tightly and said something 'to the effect that he felt lucky to be hugging me, and he was happy to have me on the team' whispering the first part into her ear and saying the second part more openly. The applicant said it made her feel uncomfortable and humiliated.[36]
3. As the applicant left the venue, she said she spoke to Ms Dobbie, saying she wanted to talk to her about Mr Blessing because something happened with him that was not appropriate. Ms Dobbie gave no evidence about this at the hearing.
4. The applicant also said that the next day at work she had a morning meeting with Ms Ferrier and Mr Polkinghorne. The applicant said that during the meeting they discussed what had happened between her and Mr Blessing; Mr Polkinghorne said that he had not realised the applicant was uncomfortable and that when she walked away after saying goodbye, Mr Blessing made a comment that she was pretty.[37]
5. Mr Polkinghorne, who the applicant summoned to give evidence, still works for the respondent company now merged with Windana.
6. Mr Polkinghorne's evidence was that he was in a conversation with Mr Blessing and the applicant when the applicant was leaving the venue. He said he did not recall any of the specific words spoken but recalled that the applicant was saying goodbye to him and to Mr Blessing.
7. Mr Polkinghorne said that there was a hug between the applicant and Mr Blessing. He said he could not hear what was said and did not recall what happened after that. He said his conversation with Mr Blessing was limited as the surroundings were noisy and it was hard to hear. He said that after the applicant left, Mr Blessing said something positive about her, but he could not recall what was said.
8. When asked, Mr Polkinghorne said the venue was noisy for most of the function and while he was speaking to Mr Blessing, he had to lean in to hear him. Mr Polkinghorne said he did not observe Mr Blessing's interactions with the crowd.
9. Mr Polkinghorne also gave evidence about a meeting the next day. He said the applicant was rattled and distressed, describing her feelings from interactions with Mr Blessing. He said she was anxious and frustrated. Mr Polkinghorne was unable to recall the nature of the interactions the applicant described. He said he and Ms Ferrier supported her and suggested she speak to Human Resources.
10. Mr Blessing said in his statement that his recollection was the applicant did not approach him when he was speaking to 'James Polkinghorne'. Mr Blessing denied he would have asked for a hug and denied he had said 'words to the effect that I felt lucky to be hugging her and that I was happy to have her on the team'.[38]
11. In response to the applicant's statement that she felt unable to express her discomfort at being asked for a hug and having words whispered in her ear, Mr Blessing said that he 'felt like I was approachable as the CEO of the respondent, and was always approachable to my colleagues if they wanted to connect with me or share any news'. Mr Blessing also denied that he had said the applicant was pretty and said he would not describe a colleague in that way.[39] When cross examined, Mr Blessing said he did not recall speaking to the applicant and did not recall saying goodbye to her. When asked if he could have said goodbye to her, he said his memory was that he did not.
12. I find that there was a hug between the applicant and Mr Blessing. The applicant's evidence about this was supported by Mr Polkinghorne who was unable to give other details about the encounter, only that there was a hug and that it was difficult to hear what was said. This is in direct contrast to Mr Blessing's recollection that the applicant did not approach when he was speaking to Mr Polkinghorne.
13. It was put to Mr Blessing in cross examination that allegations about sexual harassment had been made against him by other women over the course of his time as CEO. He said that was not so, that he did not have 'favourites' and had never had an issue raised before.
14. In contrast to that, Ms Dobbie's evidence was that this was not the first time she had heard of Mr Blessing behaving inappropriately in the nine years she worked with the respondent. When asked, she said some inappropriate behaviour had been reported directly to her. When asked for detail, she described some minor instances of behaviour which may have crossed the line of what is appropriate, such as hugging a young receptionist. The specific instances were not put to Mr Blessing and may have had quite innocent explanations of which Ms Dobbie was unaware. I make no finding about them and mention them only to indicate that I have not taken those matters into account.
15. Further, I accept the applicant's evidence that Mr Blessing asked for a hug and that he made the remarks she alleges. There was no evidence to indicate that the applicant fabricated this material. On the contrary, her evidence about being upset the next day and discussing the situation with Ms Ferrier and Mr Polkinghorne, supported by their corroborating evidence, supports her report that upsetting events occurred.
16. Mr Blessing's recollection was not consistent with the evidence of Mr Polkinghorne in this instance or with that of Ms Ferrier regarding a comment about the applicant's body. The evidence from each of them corroborated the applicants.
17. I accept that the applicant did not welcome the hug with Mr Blessing or the words that went with it. Her explanation that she did not know how to refuse rings true in all the circumstances.
18. Returning to the definition of sexual harassment in section 92 of the EO Act, I do not consider hugging the applicant was necessarily conduct of a sexual nature in circumstances where people had been posing for photographs with arms round each other's shoulders.
19. I accept that the conduct (the hug) was unwelcome to the applicant, but I do not consider a reasonable person in Mr Blessing's position in all the circumstances should have known a hug would offend, humiliate or intimidate the applicant.
20. However, the fact that a CEO asks for a hug and then makes the alleged remark while hugging the applicant adds something different. Mr Blessing is an older man, in a position of authority, who does not know the applicant well. The remark that he is lucky to be hugging her makes the encounter into conduct of a sexual nature. It is not something people say to a friend or colleague but adds a suggestion of intimacy. For the same reasons, a reasonable person in Mr Blessing's position should and would have known that such a remark would offend, humiliate or intimidate.
21. I am satisfied that this conduct was sexual harassment as defined in the EO Act. This was not an explicit or violent example of harassment. Nonetheless, it was conduct of a sexual nature which a reasonable person in the circumstances would know to be a misuse of power and at least intimidating or humiliating. Accordingly, this conduct was a breach of section 93 of the EO Act.

1. The applicant claimed that after she complained about Mr Blessing's conduct, the respondent victimised her.
2. Section 103 of the EO Act prohibits victimisation. Section 104 relevantly defines victimisations as follows:

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

...

(f) has otherwise done anything in accordance with this Act or the old Act in relation to any person; or

(g) has alleged that any person has contravened a provision of Part 4 or 6 or this Part, ..., unless the allegation is false and was not made in good faith; or

...

(3) In determining whether a person victimises another person it is irrelevant -

(a) whether or not a factor in subsection (1) is the only or dominant reason for the treatment or threatened treatment provided that it is a substantial reason;

(b) whether the person acts alone or in association with any other person.

1. Section 93 which prohibits sexual harassment of employees by other employees occurs within Part 6 of the EO Act.
2. Section 4 of the Act provides that 'detriment' includes humiliation and denigration.
3. To succeed in a claim of victimisation the applicant must demonstrate a causal connection between the allegations of sexual harassment and the detriment to which she has been subjected. The claim has two elements: the 'victimiser' must subject or threaten to subject the person victimised to a detriment and a substantial reason for that conduct must be a reason specified in section 104(1) of the EO Act.[40]
4. In Besley v National Aikido Association Inc,[41] VCAT struck out most of a claim of victimisation saying:
   1. But in my view a flaw in the complaint handling process, without more, and except in very unusual circumstances, will not be capable of constituting victimisation. This is so for two reasons.
   2. First, it will be impossible to show that the allegation made by complainant is a substantial reason for the flaws in the complaint handling process. That complaint handling process would not have occurred but for the making of the complaint or the allegation. But this is not the same thing as showing that the flaw in the process is directly attributable to the making of the allegation or that the of the allegation is a substantial reason for the flaw. Generally, the reasons for the flaw will be a matter of inference. An equally or more probable explanation for the flaw will often be misunderstanding, ignorance, inefficiency or incompetence. In my view such an explanation is clearly available here even on Ms Besley's own version of events.
   3. Second, in most cases, the flaw cannot be characterised as a detriment. It is the conduct the subject of the original allegation which usually will be the detriment. The complaint handling process itself will almost always result in tension and stress, whether or not that process is flawed. In other words the attention or stress comes from the process not from particular flaws in it.
   4. However, there can be detriment where something occurs beyond the process itself, and that something occurs substantially because of the making of the allegation.
   5. Here Ms Besley alleges that during the complaint handling process Mr Savage subjected her to criticism about her non-payment of Association membership fees, although this was unrelated to the complaint handling process. This allegation, in my view, is not incapable of constituting victimisation. The other allegations are incapable of constituting victimisation and should be struck out.
5. Further, the respondent submitted that principles discussed in State of Victoria v McKenna[42] in Victoria's Supreme Court are applicable to drawing an inference about victimisation. In that case, Justice Smith analysed the reasoning in previous cases about drawing an inference of discrimination.
6. Reducing that analysis to essentials for present purposes, the principles appear to be as follows. To infer that conduct was victimising, I must be satisfied there is no equally or more probable explanation of the conduct. This does not mean an 'innocent' explanation offered by a respondent must always be accepted. Rather, it means that if a necessary element of a breach is not supported by evidence or inference then the absence of explanation or rejection of an explanation cannot fill the evidentiary or inferential gap.

SEVENTH ALLEGED INCIDENT - RESPONDENT'S MANAGERS DISCLOSE THE SEXUAL HARASSMENT ALLEGATION TO MR BLESSING

1. The applicant complains that the respondent's managers, Ms Forer and Ms Siegel, victimised her by disclosing her allegations to Mr Blessing against her wishes.
2. The applicant contended that a substantial reason for Ms Forer and Ms Siegel's conduct of informing Mr Blessing about the allegations was that they, the people in charge of the investigation process, held Mr Blessing in high regard.[43]
3. Ms Forer's evidence about Mr Blessing was that she knew and worked closely with him for ten years. Ms Forer is now the People and Culture Manager at Windana and at the time of these events held a similar position with the respondent. Ms Forer described Mr Blessing as an affectionate, compassionate and friendly people person. Ms Forer said she had never seen him engage in any behaviour that caused her concern.[44]
4. Ms Siegel said she had worked with Mr Blessing for over 12 years. Ms Siegel described him as warm, friendly and extrovert. Over that time, she said she had never seen him conduct himself in any way that was inappropriate or (using a word she noted the applicant had used) sleazy. Ms Siegel said she and Ms Forer and Mr Blessing had formed the executive leadership team at the respondent company together for many years.[45]
5. This evidence indicates to me that Ms Forer and Ms Siegel had a high regard for Mr Blessing. In cross examination they each denied that this was a factor in their decision to inform him of the applicant's complaint.
6. At a barbecue on 21 December 2022, the applicant mentioned her concern about Mr Blessing's behaviour at the party to Ms Dobbie. Ms Dobbie said she would have to tell Ms Thomson (to whom Sarah Dobbie reported) and the applicant asked to talk about it after the Christmas break. Then on 11 January 2023, the applicant met with Ms Dobbie and Ms Thomson. The applicant told them that she was scared to put in a complaint and was afraid she would 'get fired'.[46] The applicant says she told them she did not 'want anyone to tell Ray about it'.
7. Ms Thomson replied that she needed to speak to Ms Forer and that this did not mean a formal complaint had been lodged. The applicant states Ms Thomson said, 'this will be confidential'.
8. Ms Thomson gave evidence that she said to the applicant that Human Resources would contact the applicant.[47] Ms Thomson's evidence was that when she spoke to Ms Forer and Ms Siegel on 23 January 2023, she told them that the applicant 'did not wish to make a formal complaint and Mr Blessing should therefore not be told about these concerns'. Ms Thomson said she understood Ms Siegel and Ms Forer would reach out to the applicant to discuss next steps.[48]
9. On 24 January 2023, Ms Thomson emailed the applicant to say that she met with Ms Forer and Ms Siegel on 23 January 2023.
10. On 25 January 2023, Ms Forer contacted the applicant and said that 'Ray was spoken to about the complaint' and had offered to meet the applicant and apologise to make it clear he 'only wanted to praise her work and leadership skills'. The applicant said, 'I have not even told you what Ray did' and became very distressed, saying 'you have compromised my safety', 'you have compromised confidentiality', and 'you have put me and my job at risk'. The applicant called Ms Thomson and said Ms Thomson acknowledged this was not the process that was agreed upon.[49]
11. Ms Dobbie's evidence about the conversation with Ms Thomson was consistent with the applicant in that she said she believed the information was not to be formalised and was to be confidential until the applicant decided what she wanted to do.
12. Ms Thomson's evidence was also consistent with this. Ms Thomson said she told the applicant she would have a private and confidential meeting with Ms Siegel (to whom Ms Thomson reported) and with Ms Forer and would need the applicant's instructions before doing anything else.
13. Ms Thomson's evidence was that when she heard Ms Siegel and Ms Forer had told Mr Blessing about the complaint, Ms Thomson told them this was against the applicant's wishes.[50]
14. Ms Forer agreed that Ms Thomson said on 23 January 2023 that the applicant did not wish to make a formal complaint but wished to inform Human Resources.
15. Ms Forer's evidence was that she was very concerned allegations of this kind were being made against the CEO and thought they should be dealt with in a timely manner. Ms Forer said she looked at the organisation's grievance policy to ensure the issue could be addressed at the local level and to check it was not mandatory to undertake an investigation when the complainant had not asked for it.[51]
16. Ms Forer said she decided it was appropriate to speak to Mr Blessing and phoned Ms Thomson who agreed that was appropriate.[52] Ms Thomson when asked at the hearing said that this did not happen. Ms Forer maintained she had made that call. On this issue, I preferred the evidence of Ms Thomson. It was consistent with all her other evidence that she did not approve the overriding of the applicant's wishes about this.
17. Ms Forer said that when on 25 January 2023 she told the applicant that Mr Blessing had been informed about the complaint, the applicant was very distressed and Ms Forer understood that the events were having a larger impact on the applicant than Ms Forer had realised and that the situation was more serious than Ms Forer had realised.[53]
18. Ms Forer maintained when cross examined that she did not recall Ms Thomson informing her and Ms Siegel on 23 January 2023 that the applicant did not want her complaint mentioned to Mr Blessing.
19. When Ms Forer was asked whether it would have been a good idea to speak to the applicant before informing Mr Blessing, Ms Forer said she saw the complaint as a safety issue.
20. When asked whether she had considered the applicant's privacy, Ms Forer said she felt that by informing Human Resources, the applicant had indicated she wanted the complaint resolved. Ms Forer said she did not consider it necessary to inform the complainant of her intentions.
21. The applicant's representative put to Ms Forer that she had told Mr Blessing about the complaint as a way of paying back the applicant for daring to complain. Ms Forer denied that.
22. Ms Siegel's evidence was similar to Ms Forer's. Ms Siegel said Ms Thomson told her and Ms Forer that the applicant was not sure whether she wanted to make a formal complaint.[54] Ms Siegel said she saw the matter as a safety issue and considered the respondent had an obligation under occupational health and safety laws to ensure employees felt safe at work.
23. Ms Siegel said she considered the respondent's complaints policy with Ms Forer and considered it appropriate to inform Mr Blessing so the complaint could be resolved locally if possible and so he could reflect on and if necessary, modify his behaviour in the workplace. Ms Siegel said she was unaware at this stage that the applicant did not want Mr Blessing told of her complaint.[55]
24. In cross examination, Ms Siegel denied Ms Thomson had told her not to tell Mr Blessing about the complaint and maintained she did so for reasons of ensuring employee safety and to resolve the complaint as soon as possible.
25. When Ms Siegel was asked about the importance of the applicant's wishes and the safety of the applicant as a person making an allegation, Ms Siegel said she believed her approach was the most appropriate way of moving forward. When asked whether she spoke to the applicant about her intentions, Ms Siegel replied that she wanted to resolve the matter swiftly for all parties. When asked about the complaints policy, Ms Siegel agreed she could not see there any material recommending that the first step to resolution was to convey the complaint to the accused person. Ms Siegel relied on the principle of seeking early resolution.
26. When Ms Siegel was asked whether she and Ms Forer discussed any obligations to the applicant, she said she did not recall 'but we usually do consider everybody'. When asked whether she considered the applicant's safety as a person making an allegation, Ms Siegel said 'we believed it was the most appropriate way of moving forward'.
27. It is more likely than not that Ms Thomson did as she says she did. That is, that she told Ms Forer and Ms Siegel that the applicant did not wish to make a formal complaint at that stage and that therefore Mr Blessing should not be told about the concerns the applicant had raised. This evidence is consistent with Ms Thomson's other evidence, whereas Ms Forer and Ms Siegel had different recollections and each focussed on what she was thinking at the time rather than on what Ms Thomson had said. The words Ms Thomson relates were that she said Mr Blessing 'should not be told', which is not precisely the same as saying the applicant did not want him told.
28. It is possible Ms Forer and Ms Siegel misunderstood or did not hear what Ms Thomson said, or that they considered their own judgement of what to do better than hers. Ms Thomson's words as she reports them leave room for Ms Forer and Ms Siegel to have misunderstood Ms Thomson to be offering advice, rather than relaying the applicant's wishes. There was nothing to indicate that either of them decided to override the applicant's wishes as some kind of retaliation or punishment. The evidence however shows they gave no weight or attention to the applicant's wishes, her privacy or her position as a person making an allegation against the CEO.
29. Here then is an apparent flaw in the complaint handling process - that Ms Forer and Ms Siegel apparently had no regard for the applicant's wishes, privacy or relative lack of power as an employee making an allegation against the CEO. In their roles they had control of the response to the applicant's complaint. Their evidence is that they prioritised the good of the organisation.
30. The applicant says the detriment she suffered was immediate distress upon learning of the disclosure when she had a heated discussion with Ms Forer. The applicant says she felt disempowered and uncertain about her future at the respondent company and began having panic attacks.[56]
31. The respondent says the effect the applicant describes is an effect on her feelings, not a detriment to which she was subjected. I consider that the applicant did suffer detriment, in that control of her position was taken from her against her wishes clearly expressed to her manager. Her uncertainty and panic attacks are responses, but the disempowerment is something imposed on her by the respondent (by its employees Ms Forer and Ms Siegel).
32. This conduct of the respondent would only amount to victimisation if the conduct occurred because of the applicant's complaint. I am not satisfied that is so. This conduct does not amount to victimisation because there is insufficient causal connection between the allegations and the conduct.
33. It is true the handling of the complaint would not have occurred but for the applicant having made the complaint. However, on the evidence before me, the flaws in the way Ms Forer and Ms Siegel handled the complaint did not occur because the applicant complained, but because Ms Forer and Ms Siegel thought they should obtain a quick and local resolution. Knowingly or not, they acted against the applicant's wishes (which the applicant had conveyed to Ms Thomson) and took no account of her position or her privacy.
34. Ms Forer understood the situation better when she spoke to the applicant by phone on 25 January 2023 and understood some of the 'human impact'.[57] A better process would have been to speak to the applicant before revealing the complaint to Mr Blessing. However, there is no basis for me to infer that Ms Forer and Ms Siegel acted that way because the applicant had complained. Their own explanation is equally probable. Even if they put their regard for Mr Blessing and their view of their responsibilities as managers in the organisation ahead of the applicant's wishes and interests, that is not an indication that the applicant's complaint was the reason for the flawed process.
35. I am not satisfied that informing Mr Blessing of the allegations amounted to victimisation, although it did cause the applicant detriment in that she lost the opportunity to make her own decision about how to manage her complaint.

EIGHTH INCIDENT - NO INVESTIGATION OF THE APPLICANT'S ALLEGATIONS

1. The applicant also complained that the respondent victimised her by failing to investigate her complaint or to inform her it would not be investigated until she formalised her complaint.[58]
2. The respondent's position was that there was no investigation because there was no formal complaint.
3. A few days after the applicant was told that her complaint had been relayed to Mr Blessing, she ceased attending work. On 1 February 2023 she saw a doctor and reported she had been sexually harassed. Around 9 February 2023 the applicant lodged a WorkCover claim and began receiving payments.[59]
4. The applicant's evidence was that she could not recall anyone from the respondent informing her how to lodge a formal complaint when she had already spoken to her manager and to Ms Forer. The applicant said she approached Chester Allan, chair of the respondent's board, in February 2023 but he told her he could not meet with her until she had medical clearance.
5. There was no evidence that the respondent investigated the applicant's complaint. The evidence showed that after Ms Siegel and Ms Forer informed Mr Blessing about the applicant's concerns, they took very little further action about those concerns, only providing information.
6. Ms Forer said she phoned the applicant on three subsequent occasions (30 January, 6 February and 16 February 2023), providing information about WorkCover forms, the employee assistance program and a Return-to-Work Coordinator.[60] In the call on 16 February 2023, Ms Forer says she told the applicant that she 'could consider making a formal complaint' and said she would send an email 'explaining the complaints process'. Ms Forer did send an email on 20 February 2023, attaching the respondent's grievances and complaint's policy[61] and asking the applicant to let her know if she wished to submit a complaint.[62]
7. Ms Siegel's evidence was that she and Ms Forer informed Mr Allan about the issue soon after she and Ms Forer had informed Mr Blessing about the issue.
8. As the applicant contended, the respondent's grievances and complaints policy does not say that an investigation will only be conducted if there is a formal complaint.
9. In relation to anonymous disclosure, the policy says the manager will determine if a disclosure needs to be 'Dealt with informally' or 'Referred for formal investigation'.[63] In relation to informal complaints, the policy says that the manager or People and Culture Manager will 'Advise the complainant that in some situations - where the allegations are serious - they may need to be reported to senior management and dealt with as a formal complaint'.[64] Under the heading 'formal complaints', the policy says 'Serious allegations of harassment, bullying and discrimination will need to be addressed formally' and 'An investigation will occur as soon as possible after the complaint is received'.[65]
10. Thus, for the three categories of complaint, the policy allows for an investigation to take place. In each case that depends on the decision of a manager or the People and Culture Manager. Investigation is not mandated except where a formal written complaint is received. It was therefore open to the respondent's staff, Ms Forer and Ms Siegel, to interpret the policy as indicating that without a formal written complaint, they were not required to pursue an investigation. The policy also leaves it open to them to judge whether any other sort of complaint should be investigated, depending on their view of the seriousness of the anonymous or informal complaint.
11. The information given to the applicant about making a formal complaint was not in a helpful form and certainly did not say that there would be no investigation without a written complaint.
12. Arguably, Ms Siegel and Ms Forer deemed the complaint was not serious enough to require investigation without a formal written complaint. Even if that is so, I am not persuaded that their conduct, or the respondent's failure to investigate or do anything to respond to the substance of the complaint (other than tell Mr Blessing about it), was victimisation as defined in the EO Act.
13. Looking at the situation as a whole, the respondent's response to the applicant's complaint was flawed, particularly in failing to investigate and in failing to tell the applicant there would be no investigation without a written complaint. However, there is insufficient evidence for me to conclude that the respondent's managers acted (or failed to act) because the allegation was made. In making their decisions about response, they focussed on the organisation and Mr Blessing and not on the applicant, but I am not satisfied they did this as a means or with the intent of causing detriment to the applicant.
14. The absence of explanation for the flaws or failures is not sufficient for me to infer that the respondent acted as it did with the intent of causing detriment to the applicant. Accordingly, the failure to investigate the applicant's complaint was not victimisation in breach of the EO Act.

THE NINTH ALLEGED INCIDENT - INVESTIGATION OF THE APPLICANT'S OTHER EMPLOYMENT

1. The applicant complains the respondent victimised her when, while she was on leave as a result of psychological injury arising from the alleged sexual harassment and victimisation, it investigated her part time employment with the Telstra 1800RESPECT line through Telstra Health.[66]
2. The respondent's position was that it did not investigate the matter but received information and notified the applicant it would investigate later.
3. The applicant's evidence was that in February 2023 she received phone calls about her second job from her manager Ms Dobbie. The applicant said she usually worked at her second job after hours during the week and on Sunday nights. The applicant said the respondent knew of the second job, and that it was not something she tried to hide.[67]
4. When making a WorkCover claim in February 2023, the applicant included claims for the time she had lost from working at her second job. The applicant said she did this because the anxiety she experienced following the Christmas party and later events also made her unable to work at her other job. The applicant points out that she was not hiding anything, as she did provide the payslips from Telstra Health.[68]
5. The applicant said most of her work for Telstra Health took place after hours, but on '6 or 7' occasions she had worked a morning shift for Telstra Health (in the time she was employed to be working for the respondent) and had done her hours at the respondent company at the end of the day. The applicant said she understands this was wrong.
6. The applicant agreed in cross examination that around 24 February 2023, Ms Dobbie asked her for confirmation of her hours at Telstra Health and for the contact details of her manager at Telstra. The applicant agreed she had said no to that request and took no action to explain the situation. The applicant's evidence was that the calls from Ms Dobbie about this issue exacerbated her anxiety and she was unable to respond properly. Further, the applicant said a friend who also worked for the respondent told her that Ms Dobbie had asked him about the applicant's second job and this had upset her very much.
7. The applicant said in cross examination that she had not pursued providing further information to Ms Dobbie about the issue because Ms Dobbie's response on the phone had been to reassure her and had not implied that providing the information was urgent.
8. On 21 March 2023, the applicant received a letter from Ms Siegel about 'concerns regarding conduct during your employment'. The applicant said this caused her to have a panic attack and she felt she was being attacked and targeted for 'complaining about Ray'. Her evidence was 'it felt like Taskforce were saying to me that I had done something worse than what Ray had done to me' and 'I was being accused... yet there seemed to be no consequences for Ray's conduct towards me'.[69]
9. The letter amongst other things said 'The conduct you have disclosed is extremely serious and in breach of your obligations as a Taskforce employee. It may also constitute a criminal offence (fraud)'. The letter said it was sent 'in fairness' to the applicant and that the respondent company would not be taking any action about the matter at that time.[70]
10. Ms Dobbie's evidence was that when she saw the applicant's WorkCover forms she saw some of the hours with Telstra were during times when the applicant was working for the respondent. Ms Dobbie agreed she had asked the applicant about this on the phone and said she had been checking with the applicant intermittently during February 2023 because she was her manager and interested in her wellbeing. Ms Dobbie denied she had badgered the applicant. Her evidence was that in a phone call, she raised the issue with the applicant, who said that her second job was only after hours but then the applicant rang back and admitted to some overlap.
11. Ms Thomson said that in late March 2023, Ms Dobbie told her that the applicant had been working for Telstra Health during hours she was paid to work for the respondent company. When cross examined, Ms Thomson said although she had not seen documents at the time, her conversations with Ms Siegel and Ms Forer indicated they had proof that the applicant had worked at her second job on days when she was 'working from home' for the respondent.
12. Ms Siegel said she considered her letter of 21 March 2023 balanced the seriousness of the issue with the applicant's 'personal circumstances' and that while it was not appropriate to ask the applicant to participate in an investigation while she was unwell, it was appropriate to tell the applicant that the respondent would be investigating the issue on her return to work.[71] Ms Siegel denied that the letter had a threatening tone.
13. I am satisfied the respondent had reason to believe the applicant had worked for another employer during hours she was contracted to work for the respondent. The documentary evidence (the applicant's own WorkCover claim) did not establish that this conduct extended beyond the few occasions the applicant admitted. I accept the applicant's evidence that her failure to explain the situation to Ms Dobbie was due to her symptoms of anxiety.
14. Neither party produced any other documents about the applicant's second job. I do not find that the respondent investigated the issue while the applicant was on leave, although it gathered some information, initiated by the applicant herself revealing the situation in her WorkCover claim forms.
15. The letter of 21 March 2023 was not pleasant. I agree with the applicant's comment that it was heavy handed, especially in comparison to the way the respondent dealt with the applicant's allegations against Mr Blessing.
16. However, the respondent's stated reasons for sending the letter are founded in facts the applicant does not deny. The unexplained difference in the treatment accorded the applicant's allegations compared to the treatment of the misconduct allegation against her is not a sufficient basis for me to infer that the letter was sent because the applicant had complained about Mr Blessing's conduct.
17. There was no factual basis for me to infer that the reason the respondent wrote to the applicant about her second job in the way it did was because of the applicant's complaint about Mr Blessing. Accordingly, this did not amount to victimisation.

THE TENTH ALLEGED INCIDENT - THE RESPONDENT'S LETTER OF 4 MAY 2023

1. On 4 May 2023, the applicant received a further letter signed by Ms Siegel. The title of the letter was 'Your absence from employment with Taskforce Community Agency Inc'.[72]
2. The letter noted the applicant had been absent from work for medical reasons since 30 January 2023, the respondent's operational difficulties in her absence, the allegations of 'serious misconduct warranting summary termination' and queried when the applicant would be able to work and to answer the allegations. The letter asked the applicant to consent to the respondent contacting her medical practitioner to obtain that information.
3. The applicant said the letter made her extremely anxious and she asked her representative at the Australian Services Union to deal with it.
4. Ms Siegel's evidence about this was that the union representative contacted her and asked for an extension of time to respond, then later said the applicant had an appointment with her doctor on 16 May 2023 to discuss the request and indicated that the doctor would provide a report in due course. Ms Siegel said she received nothing further from the applicant or the representative or the doctor in response to her letter.[73]
5. In her statement Ms Siegel said she had received the medical certificates about the applicant's incapacity to work. They were attached to Ms Siegel's statement.[74] I note each of the certificates mentioned as the basis of the incapacity that the applicant was 'very anxious about returning to work'.
6. In cross examination, Ms Siegel said she considered the mention of termination of employment in the letter was consistent with taking a careful approach given the applicant's circumstances.
7. Ms Siegel was also asked whether the fact that the letters of 21 March 2023 and 4 May 2023 were the respondent's only correspondence with the applicant over that period amounted to a 'careful approach' given her circumstances. Ms Siegel said in response that 'HR' was in contact with the applicant and that Mr Allan had taken over dealing with the applicant. However, I note the applicant's evidence that the chair told her he could not speak to her until she had medical clearance.
8. The evidence does not show that the respondent dealt carefully with the applicant. The respondent pursued the misconduct allegation based on the applicant's own admissions at a time when she had no capacity to respond. The respondent did not investigate the applicant's allegations against Mr Blessing, when its own policies allowed for that to occur.
9. However, the test for victimisation is whether detriment was imposed or threatened because of the complaint. Ms Siegel's reasons for sending the letter of 4 May 2023 are credible. There is no basis on which I can infer that the respondent behaved in this way because of the complaint, or that the letter was sent with the aim of causing the applicant detriment because of the complaint.
10. Accordingly, the sending of the letter of 4 May 2023 does not amount to victimisation in breach of the EO Act.

THE ELEVENTH INCIDENT - DECISION NOT TO OFFER THE APPLICANT A FURTHER CONTRACT

1. On 9 June 2023, the applicant received a letter from the respondent, signed by Ms Thomson, indicating that the applicant's fixed term contract to work for the respondent would end on 30 June 2023. The applicant in her evidence, understood that as saying that her employment 'would be terminated'.[75]
2. Ms Thomson said that on 24 May 2023, Mr Allan called her to say that the respondent had received a letter from the Australian Services Union on behalf of the applicant complaining about Mr Blessing and about the management of the applicant's complaint by Ms Siegel and Ms Forer. Because those persons had all been mentioned in the letter, Mr Allan said that Ms Thomson was to manage matters concerning the applicant's employment.[76]
3. Ms Thomson's evidence was that the government funded program which the applicant was working on had in early 2023 been renewed to continue to June 2024.[77] It is logical to assume then that in the ordinary course of events the applicant could have expected an offer of a further fixed term contract.
4. When the applicant received the letter of 9 June 2023, she says, she phoned Ms Dobbie and said, 'I told you I was going to get fired' to which Ms Dobbie replied, 'you lost your job because you did something wrong'. Ms Dobbie at the hearing could not recall the exact words but accepted there was a conversation like this. Ms Dobbie said she was not involved in the decision which led to the letter. I accepted that evidence.
5. Ms Thomson's witness statement said:

I did not consider it was appropriate to offer the Applicant a further fixed-term contract based on her admission to working for another employer while she was required to work for the Respondent, and the concerns the Respondent had outlined in its correspondence [the letter of 21 March 2023] attached to the Applicant's Witness Statement.[78]

1. In cross examination, Ms Thomson maintained that was the true reason for her decision not to offer the applicant a further fixed term contract. Ms Thomson added that she understood it was not possible to backfill the applicant's position while she was on WorkCover and the respondent needed someone in that position because the respondent was contracted to deliver a service. I found Ms Thomson a credible witness and accepted this evidence.
2. Ms Thomson agreed that the applicant had not had an adequate opportunity to answer the allegations of misconduct, because she was on sick leave and was not required to answer at that time. Ms Thomson also agreed she had not seen documentary evidence of the alleged misconduct but had accepted what Ms Dobbie had told her. This did not indicate to me that Ms Thomson had been unfair in this decision.
3. Ms Thomson said at the hearing that the decision was difficult because the applicant was on sick leave and had made an allegation against Mr Blessing. Ms Thomson said the decision weighed heavily with her because of those allegations but the allegations against Ms Blessing played no role in her decision. I accepted that evidence. There was no basis for me to infer that the reason for not renewing the applicant's contract was her complaint about Mr Blessing's conduct.
4. Accordingly, I found that the respondent did not victimise the applicant when it decided not to offer her a further fixed term contract of employment.

1. I have found that the applicant was sexually harassed. This occurred at a work function which the applicant and Mr Blessing attended in their capacity as employees of the respondent. In those circumstances and in the absence of any evidence or submissions to the contrary, I am satisfied that Mr Blessing's conduct occurred in the course of his employment for the purposes of section 109 of the EO Act.

1. The claims of sexual harassment in the first and third incidents are dismissed for the reasons given above.
2. The claims of sexual harassment are proved in regard to the second, fourth fifth and sixth incidents for the reasons given above.
3. Pursuant to section 109 of the EO Act, the respondent is liable for those incidents.
4. The claims of victimisation are dismissed for the reasons given above.
5. Only the questions concerning liability have been determined. VCAT will give directions for next steps after hearing from the parties.

[2] Allegations set out in the application dated 22 June 2023 and second further amended points of claim dated 17 September 2024.

[3] Attachments 33 and 34 to the applicant's witness statement dated 14 November 2024.

[4] GLS v PLP (Human Rights) [2013] VCAT 221.

[5] [1938] HCA 34; (1930) 60 CLR 336, 361-3.

[6] Witness statement of Kate Forer dated 23 December 2024 at [9] to [11].

[7] Applicant's witness statement dated 14 November 2024 at [7].

[9] Witness statement of Ray Blessing dated 23 December 2024 at [9].

[11] Applicant's witness statement dated 14 November 2024 at [10] to [14].

[12] Witness statement of Trudy Clapp dated 14 November 2024 at [12].

[13] Witness statement of Ray Blessing dated 23 December 2024 at [10].

[14] (No 2) [2021] NSWCA 147; (2021) 105 NSWLR 403.

[16] Applicant's witness statement dated 14 November 2024 at [16].

[19] Witness statement of Ray Blessing dated 23 December 2024 at [15].

[20] Attachment RB-1 to the witness statement of Ray Blessing dated 23 December 2024 at [16] and [38].

[21] Witness statement of Ray Blessing dated 23 December 2024 at [39].

[22] At attachment RB-1 to the witness statement of Ray Blessing dated 23 December 2024.

[23] Applicant's witness statement dated 14 November 2024 at [17].

[24] Tribunal Book (TB) at page 165.

[25] Ray Blessing witness statement dated 23 December 2024 at [18].

[27] Applicant's witness statement dated 14 November 2024 at [18].

[29] Witness statement of Natalie Siegel dated 24 December 2024 at [20].

[30] Attachment RB-2 to Mr Blessing's witness statement dated 23 December 2024.

[31] Applicant's witness statement dated 14 November 2024 at [19] to [21].

[32] Witness statement of Ray Blessing dated 23 December 2024 at [22].

[33] Applicant's witness statement dated 14 November 2024 at [31].

[38] Witness statement of Ray Blessing dated 23 December 2024 at [40].

[40] Stewart v Dept Education and Training (Human Rights) [2015] VCAT 784.

[41] [2005] VCAT 245.

[42] [1999] VSC 310.

[43] Applicant's written submissions 15 March 2025 at [86].

[44] Witness statement of Kate Forer dated 23 December 2024 at [7] to [11].

[45] Witness statement of Natalie Siegel dated 24 December 2024 at [8] to [11].

[46] Applicant's witness statement dated 14 November 2024 at [42].

[47] Witness statement of Melanie Thomson dated 24 December 2024 at [17].

[49] Applicant's witness statement dated 14 November 2024 at [42] to [46].

[50] Witness statement of Melanie Thomson dated 24 December 2024 at [22].

[51] Witness statement of Kate Forer dated 23 December 2024 at [25].

[54] Witness statement of Natalie Siegel dated 24 December 2024 at [25].

[56] Applicant's witness statement dated 14 November 2024 at [49] to [50].

[57] Witness statement of Kate Forer dated 23 December 2024 at [35].

[58] Applicant's second further amended particulars of claim dated 17 September 2024 at [50.3] and [50.4].

[59] Applicant's witness statement dated 14 November 2024 at [56] and [57].

[60] Witness statement of Kate Forer dated 23 December 2024 at [37] to [39].

[62] Witness statement of Kate Forer dated 23 December 2024 at [40] and Attachment KF-4.

[66] TB page 359; applicant's second amended particulars of claim dated 17 September 2024 at [37] to [40] and [50.5] to [50.6].

[67] Applicant's witness statement dated 14 November 2024 at [63].

[68] Applicant's witness statement dated 14 November 2024 at [65].

[69] Applicant's witness statement dated 14 November 2024 at [82] to [84].

[70] See Attachment 2 to the applicant's witness statement dated 14 November 2024.

[71] Witness statement of Natalie Siegel dated 24 December 2024 at [38] to [39].

[72] See Attachment 3 to the applicant's witness statement dated 14 November 2024.

[73] Witness statement of Natalie Siegel dated 24 December 2024 at [46] to [49].

[75] Attachment 4 to the applicant's witness statement dated 14 November 2024.

[76] Witness statement of Melanie Thomson dated 24 December 2024 at [33].