1. The complaint is dismissed pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

Mr I Fehring of counsel instructed by Tait Leishman Taylor

Mr C Broadbent, solicitor, National Retail Association

1

The respondents seek to have this complaint struck out or dismissed pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 ( "the VCAT Act"), on the basis that the conduct complained of does not constitute "conduct of a sexual nature" as defined by section 85 of the Equal Opportunity Act 1995 ("the EO Act"). The complaint was referred to the Tribunal by the Equal Opportunity Commission by letter dated 4 August 2005. Particulars of Complaint were filed on 26 September 2005 pursuant to orders of the Tribunal made on 5 September 2005. The respondents' application to strike out the complaint was received on 2 November 2005, along with provisional Particulars of Defence. On 14 November 2005, the parties were ordered to file and serve submissions concerning the strike-out application.

2

Paragraph 10 of the Particulars of Complaint dated 26 September 2005 alleges that the first respondent, a co-worker, engaged in unwelcome conduct of a sexual nature in relation to the complainant, when on 8 March 2005, she "placed a sanitary napkin on her back during the course of her employment". This act, it is alleged, "amounted to the making of a gesture or action which was sexual in nature towards the Applicant", and the conduct was such that "a reasonable person would have anticipated that the Applicant would be offended, humiliated and/or intimidated by the conduct".

3

According to paragraphs 4-6 of the Particulars of Complaint, the incident occurred at around 11.45 pm when the complainant, the co-worker, and others were working in the same aisle areas stocking shelves. No words or gestures are alleged to have accompanied the act of putting the sanitary napkin on the complainant's back, and the complainant was made aware of its presence by another person some 35 minutes later when she returned from her meal break elsewhere on the premises. The complainant then removed the sanitary napkin and reported the incident to her supervisor.

4

Section 75 of the VCAT Act 1998 provides for summary dismissal or strike out of all or part of a proceeding which the Tribunal considers frivolous, vexatious, misconceived or lacking in substance. On the authorities[1], caution should be exercised before summarily dismissing a complaint, and summary dismissal should only follow satisfaction that the proceeding is obviously hopeless, obviously unsustainable in fact or in law, can on no reasonable view justify relief, or is bound to fail. It is necessary to assume, for the purposes of the strike-out application, that the applicant will be able to prove each fact in the claim in question[2].

5

Section 85(1)(b) of the EO Act provides that a person sexually harasses another person if he or she engages in any "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".

6

Section 85(2) of the EO Act provides that "conduct of a sexual nature"

(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.

7

While section 85(2) defines conduct of a sexual nature inclusively and not exhaustively, it is clear from the terms of the section that it is confined to acts or statements of a sexual nature related to sexual matters or which can be characterised as sexual or as sexually-related. The term relates to matters which have to do with sexual activity or attraction or relationships[3]. Within this broad category, the term may refer to many things, including: requests for sexual intercourse, love letters, invitations to date, comments about parts of the body which are generally regarded as having a sexual function or about a person's sex life, physical contact such as patting, pinching or touching in a sexual way, indecent exposure, offensive telephone calls, offensive hand or body gestures[4]. Whether conduct or a statement is "sexual" may depend on the circumstances, including where and when and how the conduct occurred, and the understanding of the participants at the time.

8

Conduct of a sexual nature may include exposure to sexually explicit or offensive material, and sexually suggestive jokes[5]. The allegedly accidental sale by a butcher to an unsuspecting customer of a dog bone shaped (deliberately by the butcher) to resemble the male reproductive organ has been held to be conduct of a sexual nature[6].

9

The test of whether conduct is conduct of a sexual nature is an objective one, and the motivation or understanding of the perpetrator is irrelevant[7]. Moreover, a single incident may constitute sexual harassment[8].

10

Written submissions concerning the strike-out application were filed by the parties, and I heard oral argument based on them. The respondents submitted that while the use of a sanitary napkin relates to the female reproductive cycle, it is not an item of a sexual nature, and, even if it were, attaching one to a person's back without their knowledge, on one occasion, without more (such as comment, gesture or other conduct of a sexual nature) could not constitute conduct of a sexual nature, because that term relates to matters concerning sexual activity, attraction or relationships.

11

The respondents relied on Pana Andropoulos v Peppers Delgany Portsea (unreported, VCAT, 6 May 1999, Mr J Wolters SM) and Cassandra Evans v Total Food Management (trading as Pinky's Pizza) (unreported, VCAT No 213 of 1997, 9 February 1999). The respondents also submitted that there was no allegation of anything in the context in which the incident occurred which supported a conclusion that this was an incident of unwelcome conduct of a sexual nature. Accordingly, it was submitted, even if the conduct was unwelcome and a reasonable person would have anticipated that the complainant would be humiliated or offended by it, it was not conduct of a sexual nature, and therefore the complaint was lacking in substance and should be dismissed or struck out.

12

It was submitted on behalf of the complainant that the complaint should not be struck out because not all factual matters were agreed between the parties, evidence needed to be led of the context of the incident, and the first respondent's motivation in attaching the napkin to the complainant's back "is an issue that requires exploration and evidence". In particular, the respondents' suggestion that such conduct had occurred before needed to be "explored and fully understood" by the Tribunal in considering the substantive merits of the complaint. Finally, it was submitted that the incident complained of constitutes conduct of a sexual nature because it amounts to a gesture or action directed to the Applicant "and that in all the circumstances that gesture or action involved the necessary sexual content".

13

It was submitted that the facts in Andropolous were different to those in this case, where there was no voluntary submission by the complainant to the first respondent's behaviour. However, the complainant relied upon Andropoulous for the proposition that whether the conduct was sexual depends on the circumstances, including how and when the conduct occurred, the understanding of the parties of the time, as well as general community standards. It was therefore necessary, counsel submitted, for the Tribunal to hear evidence of the perpetrator's intentions, and of the history of any other similar behaviour, before determining the merits of the case in all the circumstances. In particular, it was submitted, the complainant intended to show (from evidence which might be led by the respondents) that the placing of the napkin occurred in a context, or for reasons sufficient to make it, conduct of a sexual nature. For this reason, it was submitted, the complaint should not be struck out.

14

I consider that, taking the complainant's case at its highest as set out in the Particulars of Complaint, the complaint is lacking in substance and cannot succeed. I consider that while a sanitary napkin is an item which has a function associated with menstruation, and thereby an association with the sex or gender of women, it has no intrinsic connection to sexual activity, attraction or relationships as required by section 85 of the EO Act. I do not consider that the conduct complained of "amounted to the making of a gesture or action which was sexual in nature" as alleged. Similarly, even if, as is submitted on the complainant's behalf, the placing of the sanitary napkin on the complainant's back is treated as a gesture or action, this gesture or action, without more, does not constitute conduct of a "sexual nature". It is not alleged that the conduct was accompanied by any words or gestures.

15

In some cases, whether certain conduct or a statement is "sexual" will depend also on the circumstances, including such things as where and when and how the conduct occurred, as well as the understanding of the participants at the time. However, in this case, the complainant has not alleged the existence of additional circumstances which would render the conduct "sexual". Rather, counsel for the complainant noted that the complainant at this stage has not agreed with some of the factual assertions made by the respondent concerning, for example, the motive or intention of Ms Johnson, or the treatment by the second respondent of the incident as a joke, or even the history of other similar such incidents in the workplace. On this basis, it was submitted on the complainant's behalf, dismissal or strike-out is premature, as evidence concerning the circumstances might lead the Tribunal to find that the conduct was in fact of a sexual nature.

16

The hearing of a strike out application requires the taking of the complainant's case at its highest as pleaded in the Particulars of Complaint. Where the Particulars do not allege additional circumstances which, when taken with the alleged conduct, could be capable of amounting to "conduct of a sexual nature", the complainant cannot resist the strike out application solely on the basis that the respondent might provide evidence of such circumstances during the course of the hearing.

17

The matters raised by counsel for the complainant are irrelevant to the decision as to whether the conduct, as pleaded in the Particulars of Complaint, is capable of constituting or amounting to unwelcome conduct of a sexual nature. I consider that on the material before me that it is not so capable, and therefore that the complainant cannot make out her claim of sexual harassment even if one assumes that the conduct was unwelcome and a reasonable person would have anticipated that the conduct would offend her. The complaint is therefore lacking in substance and appears to be incurable by amendment. It should therefore be dismissed pursuant to section 75 of the VCAT Act.

[1] Rabel v State Electricity Commission (1998) 1 VR 102

[2] Knight v Secretary to the Department of Justice [2003] VSC 341.

[3] Cassandra Evans v Total Food Management (unreported, VCAT No 213 of 1997, 9 February 1999).

[4] Cassandra Evans v Total Food Management op cit; See the examples provided in the Queensland Anti

Discrimination Act 1991, ss118-120

[5] Djokic v Sinclair [1994] HREOCA 16; (1994) EOC 92-643.

[6] Johanson v Michael Blackledge Meats 2001 FMCA 6, 1 March 2001.

[7] Frith v the Exchange Hotel [2005] FMCA 402.

[8] Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217