FEDERAL COURT OF AUSTRALIA

 

Poniatowska v Hickinbotham [2009] FCA 680

HUMAN RIGHTS – sexual harassment – various allegations of conduct constituting sexual harassment – whether employee sexually harassed – whether conduct constituted “unwelcome conduct of a sexual nature” – whether claims made out on evidence

HUMAN RIGHTS – sex discrimination – female employee complained about sexual harassment in robust work environment – complaints dealt with inadequately – employee subsequently given warnings about unsatisfactory work performance – employment purportedly terminated on basis of unsatisfactory work performance – whether warnings about unsatisfactory work performance warranted in the circumstances – whether purported termination of employment for sufficient reason, or whether related to her complaints about sexual harassment – whether employer discriminated against employee on grounds of her sex

 

 

 

Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 3, 46PH(1)(i), 46PO
Sex Discrimination Act 1984 (Cth) ss 5, 14(2), 28A, 28B, 94
Racial Discrimination Act 1975 (Cth)
Evidence Act 1995 (Cth) s 140
 

Aldridge v Booth (1988) 80 ALR 1 cited
Leslie v Graham [2002] FCA 32 cited
McDonald v State of South Australia [2008] SASC 134 cited
Delooze v Healey [2007] WASCA 157 cited
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 cited
Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104 cited
Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 cited
Van Efferen v CMA Corporation Limited [2009] FCA 597 followed
Jones v Toben (2002)71 ALD 629 cited
Jones v The Bible Believers’ Church [2007] FCA 55cited

 

MALGORZATA BARBARA PONIATOWSKA v ALAN HICKINBOTHAM, MICHAEL HICKINBOTHAM, MARK FLYNN, ROZ SHARRAD, REMO LOTITO, HICKINBOTHAM HOMES PTY LTD and EMPLOYMENT SERVICES AUSTRALIA PTY LTD

 

SAD 120 of 2007

 

MANSFIELD J

23 JUNE 2009

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 120 of 2007

 

BETWEEN:

MALGORZATA BARBARA PONIATOWSKA Applicant

AND:	ALAN HICKINBOTHAM First Respondent   MICHAEL HICKINBOTHAM Second Respondent   MARK FLYNN Third Respondent   ROZ SHARRAD Fourth Respondent   REMO LOTITO Fifth Respondent   HICKINBOTHAM HOMES PTY LTD Sixth Respondent   EMPLOYMENT SERVICES AUSTRALIA PTY LTD Seventh Respondent

 

JUDGE:	MANSFIELD J
DATE OF ORDER:	23 JUNE 2009
WHERE MADE:	ADELAIDE

 

THE COURT ORDERS THAT:

 

1.         The seventh respondent pay to the applicant by way of compensation for unlawful discrimination contrary to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) the sum of $466,000, which sum includes interest.

2.         The applicant and the seventh respondent have liberty to apply for an order that the said compensation, or some part of it, be paid by some one or more of the second, third, fourth or fifth respondents.

3.         The seventh respondent pay to the applicant her costs of the application.

4.         The seventh respondent have liberty to apply for an order that some part of the costs ordered to be paid by it be paid by some one or more of the second, third, fourth or fifth respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 120 of 2007

 

BETWEEN:

MALGORZATA BARBARA PONIATOWSKA Applicant

AND:	ALAN HICKINBOTHAM First Respondent   MICHAEL HICKINBOTHAM Second Respondent   MARK FLYNN Third Respondent   ROZ SHARRAD Fourth Respondent   REMO LOTITO Fifth Respondent   HICKINBOTHAM HOMES PTY LTD Sixth Respondent   EMPLOYMENT SERVICES AUSTRALIA PTY LTD Seventh Respondent

 

JUDGE:	MANSFIELD J
DATE:	23 JUNE 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

BACKGROUND

1                          This action arises from the events leading up to and surrounding the termination of the employment of the applicant, Ms Poniatowska with the seventh respondent, Employment Services Australia Pty Ltd (ESA).

2                          Ms Poniatowska was born in Poland in 1967.  She completed her education in Poland, including a law degree at Warsaw University, just before she and her husband moved to Australia in 1991.  They settled in Adelaide.  They separated in 2002 and were subsequently divorced in 2004.  Ms Poniatowska has had the care and custody of the two children of the marriage, both now in secondary school, since the separation.

3                          After settling in Adelaide, Ms Poniatowska successfully completed a course in English speaking – she is now proficient in English with a noticeable accent.  She also has undertaken courses in Information Technology, a Graduate Diploma of Business (one year) and a Small Business Management Course.  Most recently, in 2005 she completed a Master of Business (Administrative Management) at the University of South Australia.  In July 2006, after the events to be discussed below, she commenced to study law at the University of Adelaide, but has not yet progressed very far in that course.

4                          In January 1998, Ms Poniatowska commenced work as an Administrative Services Officer in the Commonwealth government for two years.  She then worked as a Student Adviser at the University of South Australia for two years.  From January 2002, for a further period of two years, she worked as an Account Manager at an Adelaide radio station.  In 2004, she left that employment to complete her Master of Business degree full time.

5                          Then, in January 2005, she commenced work for ESA.  She worked for ESA from 30 January 2005 to 21 February 2006, including a probationary period of six months, which expired on 30 July 2005.  It was during her employment with ESA that the events the subject of this proceeding occurred.  She was employed as a building consultant, engaged in selling house and land packages on behalf of the sixth respondent Hickinbotham Homes Pty Ltd (Homes) to members of the public, or if the particular client was proposing to build on land already owned, to sell house packages to members of the public.

6                          Both ESA and Homes are members of a family group of companies called the Hickinbotham Group.  It is convenient to describe them collectively as the Hickinbotham Group during these reasons, although strictly speaking the relevant employer was only ESA.  It is common ground that if any orders are to be made against a corporate respondent, those orders should be made against ESA only.

7                          Ms Poniatowska obtained employment with ESA in response to an advertisement.  She was interviewed by the managing director of ESA and Homes, the second respondent Michael Hickinbotham (Mr M Hickinbotham), and by the fourth respondent Roz Sharrad before being given that work.

8                          Subsequent to the termination of her employment with ESA, in May 2006 she obtained employment as a sales consultant with another building company, AV Jennings Homes.  She held that employment until September 2006.  She says that she could not continue that employment due to health problems arising from events which occurred in the course of her employment with ESA.  It will be necessary to address that allegation later.

9                          The Hickinbotham Group has had a long history as a house builder and land developer, back to 1955, when the first respondent Alan Hickinbotham (Mr A Hickinbotham) commenced that business with his father.  Between 1960 and 2001, Mr A Hickinbotham was the Managing Director of the Hickinbotham Group.  From that date, his son Mr M Hickinbotham took over that role.  Mr A Hickinbotham retained an active interest in the business of the Hickinbotham Group.  During the relevant period and at least to the end of 2006 he was the Chairman of the Group.  He attended the office during 2005 and 2006 on a regular basis, although not full-time.

THE EVENTS LEADING UP TO TERMINATION

10                        Ms Poniatowska’s employment with ESA was terminated on 21 February 2006, at least on the face of it for unsatisfactory performance.

11                        There were formal warning notices given to her in the period of time leading up to the termination of her employment.

12                        On 21 November 2005, she was given a written warning by letter dated 18 November 2005 about the preparation and presentation of her files by the Contracts Manager, Renato Daminato (the first warning letter).

13                       
On 13 December 2005, she was given a further warning by letter under the hand of Mr M Hickinbotham concerning her acceptance of a deposit from a client for a block of land known as Lot 34 Albany Way, Seaford Rise (the second warning letter).  The second warning letter was given on the basis that Ms Poniatowska had been told by the land development manager Matt Gazzard not to proceed with the sale of that or certain other blocks of land until an issue concerning a roundabout was resolved, as changes to the dimensions of the block might be made, and secondly because she had assured the purchaser that the land opposite Lot 34 would be dedicated as a reserve and would not be built on, although it was earmarked as a future development site. 

14                        On 20 December 2005, a further warning in writing was given to Ms Poniatowska, again under the hand of Mr M Hickinbotham, over her acceptance of a deposit for a further block of land known as Lot 21 Torquay Drive, Seaford Rise (the third warning letter).  The third warning letter was given on the basis that Ms Poniatowska had taken a deposit from the client for Lot 21 Seaford Rise when she should not have done so, as the block was “on hold”, and subsequently sold by another building consultant.

15                        In early January 2006, Ms Poniatowska endeavoured to speak to Mr M Hickinbotham concerning those warnings, as she regarded them each as unfair.  Those warnings were not withdrawn. 

16                        On 10 February 2006, Ms Poniatowska was given a further letter dated 9 February 2006, again under the hand of Mr M Hickinbotham, referring to the earlier warning letters of 18 November 2005 and 13 December 2005, but not to the letter of 20 December 2005, and to “further serious errors” in her documentation and file preparation and presentation.  It also referred to a further complaint from a client, not specified in any detail in that letter.  It notified her of an investigation to be undertaken into that complaint and to her immediate suspension.  A meeting was proposed on 15 February 2006 to “put the allegations to you and obtain your response” (the suspension letter).

17                        That meeting subsequently took place on 21 February 2006, when Ms Poniatowska’s employment was terminated.  The termination was oral, but subsequently confirmed by letter from Mr M Hickinbotham of 23 February 2006 (the termination letter).

THE ALLEGATIONS

18                        Ms Poniatowska did not take her termination lying down.  On 10 March 2006, she applied to the Industrial Relations Commission of South Australia for reinstatement, alleging her dismissal was unfair.  A conciliation conference was conducted, as it apparently transpired, unsuccessfully.  On 10 May 2006, Ms Poniatowska withdrew that application.

19                        On 20 August 2006, Ms Poniatowska made a complaint to the Human Rights and Equal Opportunity Commission (HREOC) under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act).  She alleged in her complaint that during her employment with ESA she had been the victim of sexual discrimination, racial discrimination and sexual harassment.  That complaint was, as required by the HREOC Act, investigated by a delegate of the President of HREOC.  On 27 June 2007, the delegate of the President of HREOC terminated that complaint, pursuant to s 46PH(1)(i) of the HREOC Act, because the delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation.

20                        Pursuant to s 46PO(1) of the HREOC Act, Ms Poniatowska then instituted this proceeding alleging unlawful discrimination on the part of ESA and a number of its employees, including Mr A Hickinbotham, Mr M Hickinbotham and Ms Sharrad.  As required by s 46PO(3), she alleges the same unlawful discrimination, at least substantially so, arising out of the same or substantially the same acts as those which were the subject of her complaint to HREOC.

21                        Ms Poniatowska alleges that she was subject to inappropriate conduct during the course of her employment with ESA on a number of separate occasions.  Her allegations can conveniently be briefly described as follows:

1.         In early April 2005, Mr A Hickinbotham commented to her in the workplace, in the presence of others, that she had “two good assets” whilst staring at her breasts (the April 2005 allegations).

2.         In May 2005, the third respondent Mark Flynn, another sales consultant employed by ESA, sent her three unsolicited emails and a number of SMS text messages inviting her to have a sexual relationship, which humiliated and shocked her (the May 2005 allegations).  Ms Poniatowska reported that conduct to her supervisor Ms Sharrad.  No action was taken and Ms Sharrad commented to her “what do you expect with a face like yours?”

3.         In June 2005, Ms Poniatowska was rostered to work with the fifth respondent Remo Lotito.  She says that was contrary to her request not to work with him and (she suspects) for the purpose of encouraging her to have an affair with him which would have led to the termination of her employment with ESA.  Ms Sharrad insisted that she work with Mr Lotito.  At about that time, that is in June 2005, Ms Sharrad commented to the applicant in the presence of other employees “I told Remo [Mr Lotito] not to fuck my consultants”, and she felt embarrassed and humiliated (the June 2005 allegations).  As a result of a complaint to Mr M Hickinbotham about Ms Sharrad’s remark, Ms Sharrad apologised to Ms Poniatowska, but Mr M Hickinbotham’s subsequent correspondence of 9 August 2005 was unsympathetic to her concerns.

4.         In June 2005, Mr Lotito sent Ms Poniatowska a coarse MMS picture message on her mobile telephone depicting a woman giving a man oral sex and a text message “U have 2 b better” and in June or July 2005, Mr Lotito then pestered her on a number of occasions by telephone to have sex with her (the Lotito allegations).  She did not formally complain to her employer about that, but mentioned it to another consultant who did report it.  Ms Poniatowska says the investigation of that matter was unsatisfactory.

5.         On 29 August 2005, Ms Sharrad asked Ms Poniatowska to enter into a sexual relationship with a man from another building company, so that the Hickinbotham Group could secure a land deal with that company (the August 2005 allegations).

6.         On 30 September 2005, Mr M Hickinbotham kissed her “strongly on the mouth” whilst on the dance floor at a function being conducted by her employer (the September 2005 allegations).

22                        As a result of that conduct and the way it was dealt with by ESA, from about July 2005, Ms Poniatowska alleges that she came to be isolated within the office, receiving suggestive looks or sniggering looks and being excluded from conversations in circumstances where she perceived that others were talking about her.  From about September 2005, she complained that she was treated less favourably than other building consultants, and from early December 2005 her clients were transferred to other building consultants without justification.

23                        In addition, over the period of time from July 2005, as she reported the offensive conduct to Ms Sharrad and to Mr M Hickinbotham, no satisfactory response or investigation was carried out, and she was in a sense just left hanging.  It is common ground that the Hickinbotham Group had no formal policy for dealing with complaints of sexual harassment or sexual discrimination.  There is a significant contest as to how her complaints were received and addressed by the Hickinbotham Group, particularly through Ms Sharrad and Mr M Hickinbotham. 

24                        Over the latter months of 2005, Ms Poniatowska says that her work performance deteriorated due to the way in which she had been treated in relation to her complaints, and the change of attitude towards her by other employees.  She alleges that her termination on 21 February 2006 was a consequence of the conduct of which she complains, and therefore that her employer should be responsible for it and for the consequences. 

25                        More significantly, she alleges that ESA, particularly through Mr M Hickinbotham and Ms Sharrad, set about a course of action leading to terminating her employment by fabricating, or taking advantage of (in a way which it would not otherwise have taken advantage of), deficiencies in her work performance.  She alleges that the warning letters in November and December 2005, the first warning letter and the second warning letter and the third warning letter, and the suspension letter in February 2006 were part of that process.  She complains that there was no foundation or no proper foundation for those warning letters.  Her suspicion is confirmed, she claims, by a comment by Ms Sharrad in January 2006 that she would find something on Ms Poniatowska to have her terminated by the end of the month.  She also complains that Ms Sharrad in January 2006 commented to her that, “had I known you were a single mother with two children, I would never have employed you”.

26                        The factual allegations are vigorously disputed by each of the respondents, with some qualification.  They present a series of complex issues upon which detailed factual findings will need to be made.  It will then be necessary to consider the legal consequences of any findings adverse to the respondents or any of them.

27                        Before doing so, it is helpful to understand the causes of action relied upon by Ms Poniatowska. 

THE CAUSES OF ACTION

28                        Ultimately, the causes of action were confined to claims of unlawful discrimination contrary to the HREOC Act and, more particularly in contravention of ss 14, 28B and 94 of the Sex Discrimination Act 1984 (Cth) (the SD Act), and for breach of a term of trust and confidence said to be implied in her contract of employment with ESA.

29                        The starting point is the HREOC Act.  Section 3 of the HREOC Act defines “unlawful” discrimination to include any acts, omissions or practices that are unlawful under Part II of the SD Act (which includes ss 14 and 28B) and conduct that is an offence under s 94 of the SD Act.

30                        Part IIB of the HREOC Act deals with redress for unlawful discrimination.  A complaint of unlawful discrimination must be dealt with by the President of HREOC (s 46PD).  Section 46PH empowers the President to terminate a complaint on a number of grounds, including relevantly by s 46PH(1)(i) that the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation.  That is what happened here.

31                        That enlivens the ability of a complainant to apply to the Court under s 46PO(1), as Ms Poniatowska has done.

32                        Section 5 of the SD Act describes sex discrimination in the following terms:

(1)        For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a)        the sex of the aggrieved person;

(b)        a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c)        a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

(1A)     To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.

(2)        For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

(3)        This section has effect subject to sections 7B and 7D.

It is not suggested that ss 7B or 7D have any application to the present circumstances.

33                        Section 14(2) of the SD Act is the relevant provision of s 14 dealing with discrimination in employment.  It provides:

It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy:

(a)        in the terms or conditions of employment that the employer affords the employee;

(b)        by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c)        by dismissing the employee; or

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

34                        Section 28A of the SD Act defines sexual harassment in the following terms:

(1)        For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

           

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

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

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

(2)        In this section:

            conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

35                        Section 28B of the SD Act provides:

(1)        It is unlawful for a person to sexually harass:

(a)        an employee of the person; or

(b)        a person who is seeking to become an employee of the person.

(2)        It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

…

(6)        It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.

(7)        In this section:

            place includes a ship, aircraft or vehicle.

workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.

workplace participant means any of the following:

(a)        an employer or employee;

(b)        a commission agent or contract worker;

(c)        a partner in a partnership.

36                        Section 94 dealing with victimisation, although expressed as establishing a criminal offence, is also conduct which may amount to unlawful discrimination as defined in s 3 of the HREOC Act.  The final submissions on behalf of Ms Poniatowska did not specifically rely upon s 94 of the SD Act and it is not necessary in those circumstances to refer further to that provision.

37                        I note that the delegate of the President of HREOC, when considering Ms Poniatowska’s complaint initially, also identified her complaint as including a complaint of unlawful discrimination by reason of discrimination on the ground of family responsibilities, within the meaning of s 7A of the SD Act, and contrary to s 14(3A) of the SD Act (although she did not tick that box in the relevant complaint form).  The meaning of family responsibilities is defined in s 4A of the SD Act.  As nothing was made of that allegation in the course of final submissions on Ms Poniatowska’s behalf in this matter, again it is not necessary to refer to that further.

38                        There was no submission made on behalf of ESA or Homes, or any of the respondents, that the HREOC Act did not apply to them or that conduct made unlawful by the SD Act as unlawful discrimination would not apply to them.  Section 9(11) of the SD Act specifies that the prescribed provisions of Pt II (which do not include s 94) have effect in relation to discrimination by a trading or financial corporation (which would include both ESA and Homes) and by a person in the course of that person’s duties or purported duties as an officer or employee of such a corporation.  There are a series of “fall backs” as to the constitutional coverage of the SD Act then in sub-paragraphs (12)-(13) of s 9 of that Act.  As there was no submission that any unlawful discrimination contrary to the SD Act, if it were established, would not attract liability in respect of each of the individual respondents to the extent of their involvement, it is not necessary to further consider that question.  However, there is an issue as to whether the acts of each of the individual respondents (other than Mr A Hickinbotham and Mr M Hickinbotham) should be visited on the Hickinbotham Group.

39                        Section 8 of the SD Act deals with multiple purposes for a particular act or acts.  It provides:

A reference in subsection 5(1), 6(1) or 7(1) or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of two or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.

40                        Finally, I note s 106 of the SD Act dealing with vicarious liability.  It provides:

(1)        Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a)        an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b)        an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

(2)        Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

Neither ESA nor Homes sought to invoke s 106(2).

41                        In addition to the SD Act, Ms Poniatowska’s complaint to HREOC also raised racial discrimination contrary to the Racial Discrimination Act 1975 (Cth) (the RD Act).  That complaint was based upon a comment allegedly made by Ms Sharrad in late August or in September 2005 that Ms Poniatowska did not deserve to work for the Hickinbotham Group because “she came from overseas”.  In final submissions, senior counsel for Ms Poniatowska did not contend that a finding of unlawful discrimination by reason of racial discrimination should be made, but said that such conduct was part of the relevant background.  I do not think that such conduct, even if it occurred, would usefully inform resolution of the principal allegations made by Ms Poniatowska, so I shall not separately address it.  I have taken it into account in assessing the credit of Ms Poniatowska and Ms Sharrad in the following way.  Ms Poniatowska’s accent indicates that she has some overseas connections, either directly or from her parents.  It is inherently unlikely that that would not have been apparent to Ms Sharrad when the decision was made to employ Ms Poniatowska, so it is inherently unlikely that Ms Sharrad would later have made the comment attributed to her.  Consequently, I think that this alleged communication is unlikely to have occurred as Ms Poniatowska described.  I have taken that finding into account in assessing the weight I have given to her evidence.

42                        The remaining cause of action is based upon the claim that there was an implied term of trust and confidence in the contract of employment.  Ms Poniatowska asserts that her contract of employment contained a term implied by law that ESA and Homes would not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between them and Ms Poniatowska.  The conduct referred to above is the conduct which is alleged to have breached that implied term.  Furthermore, she contends, her suspension on 9 February 2006 was also in breach of that implied term.  She alleges that as a consequence of breaches of that implied term, either alone or in conjunction with the alleged unlawful discrimination, she lost her employment and suffered loss and injury.

43                        Ms Poniatowska claims variously through her causes of action and the conduct giving rise to them that she developed depression and has been unable to return to gainful employment, other than for a short period, since her employment with ESA was terminated on 21 February 2006.  She claims to remain incapacitated for work for a significant period into the future.  It will be necessary to refer to the medical evidence in some detail later in these reasons.

THE WITNESSES

44                        To a significant extent, resolution of Ms Poniatowska’s claims will depend upon whether the conduct she variously describes occurred, or occurred in the way which she says it occurred.  Some of it is acknowledged to have occurred, but a different picture or emphasis is given by other evidence.  Some of it is directly denied.  And each of the respondents vigorously disputes that any conduct on their part amounted to sex discrimination or sexual harassment.

45                        Importantly, given the elapse of time between the six specific events of alleged sexual harassment (between April 2005 and September 2005), and the steps leading up to the termination of Ms Poniatowska’s employment with ESA (apparently commencing with the first warning letter of 18 November 2005), there is a significant dispute about whether her termination was in any way related to any actual or perceived sexual harassment she experienced.  Tied in with that issue is the manner in which ESA, particularly through Mr M Hickinbotham and Ms Sharrad, addressed her concerns about her treatment.

46                        Those general comments indicate the need, in the first place, to be careful in making findings of fact on the events explored in the evidence.  They also indicate the need to carefully consider the extent to which the Court should place reliance on the evidence of witnesses.

47                        The reliability of witnesses is always difficult to assess.  Each witness sees events from his or her own perspective.  Over time there is sometimes a degree of rationalisation to fit objective material (documents) as it emerges into the understanding of events.  Some witnesses’ memories become refined by a strong belief in the rightness of their role, so that objectivity is lost to a degree.

48                        In reaching my findings in relation to the allegations, I have, of course, had regard to the contemporaneous documentary material.  I have not assumed it was all accurate, because in the case of the various warning letters there is a challenge to the motives of those who created them, or to the accuracy of the circumstances upon which they are said to have been based.  Generally, independent contemporaneous business records I have accepted as reliable foundations for further fact finding.

49                        Putting aside the medical evidence, which I will deal with separately and later, there were only six witnesses who were not parties to the proceeding: Philip Read, a building consultant who worked for the Hickinbotham Group until early 2005; Jeremy Cordeaux, a company director who attended the meeting on 21 February 2006 at which Ms Poniatowska was dismissed; Terence Wright, the Financial Controller of the Hickinbotham Group since 1998; Kelly Hopko, a building consultant still employed by the Hickinbotham Group; Mr Daminato, Homes’ Contracts Manager since 2004; and John Swan, a building consultant employed by ESA.

50                        I shall make brief observations about their evidence first.

51                        I accept Mr Read’s evidence.  He worked as a building consultant for a little over three years.  His evidence was given laconically and directly, and without apparent bias.  It accorded with other evidence as to Homes’ procedures.  It was largely background evidence about those procedures, and how building consultants dealt with them.  As it happened, it also largely coincided with Ms Poniatowska’s evidence on those matters.

52                        I accept Mr Cordeaux’s evidence was honest, but I did not find it of much help.  That is no criticism of Mr Cordeaux.  His role was a limited one.  He attended with Ms Poniatowska the meeting on 21 February 2006 when her employment was terminated.  He was not fully briefed about the events preceding that meeting, but took the role of endeavouring to encourage the Hickinbotham Group to retain her employment to their mutual benefit.  The course of that meeting was not relevantly in dispute, although details of what was said and done then are in issue.  Ms Poniatowska’s claim is that its outcome was a foregone conclusion; that Mr M Hickinbotham and the others present were really just going through the motions of apparently giving her a fair hearing.  Mr Cordeaux’s evidence does not inform or help to inform my findings on that claim.  I do not need to refer to his evidence further.

53                        Mr Wright’s role was principally limited to investigating a complaint made about Ms Poniatowska’s dealings with a client of the Hickinbotham Group in relation to a property at Victor Harbour (the Pearson complaint).  The complaint was made by undated handwritten letter; it has a receipt stamp dated 8 February 2006.  He completed his investigation and reported to Mr M Hickinbotham of its outcome on 21 February 2006, at the termination meeting of that date which he attended.  For the reasons given when considering the Pearson complaint, I do not accept that Mr Wright’s evidence is reliable in relation to the complaint or his handling of it.  Indeed, my views on his evidence inform my findings about the reasons, or at least certain of the reasons, why Ms Poniatowska’s employment was terminated.

54                        Mr Wright gave more general evidence that he was not aware of any of the allegations made by Ms Poniatowska about unlawful discrimination during her employment until well after she had been dismissed.  I do not need to form a view about that particular evidence.  However, for the reasons given when addressing the Pearson complaint, I find that Mr Wright was aware by 8 February 2006 that Mr M Hickinbotham wished to terminate her employment and that the results of his investigation into the Pearson complaint were expected to be adverse to Ms Poniatowska.  I reject his evidence to the extent it suggested the contrary.

55                        Mr Wright also gave evidence that there was a significant proportion of female office staff and female consultants and supervisors employed by the Hickinbotham Group.  He said in his statement that the working environment is particularly supportive of women, and that he had never seen inappropriate sexual conduct or heard inappropriate sexual comments amongst those in the office, including consultants and supervisors.  Nor did he see Ms Poniatowska treated differently during the period from about June or July 2005 compared to the earlier period of her employment.  However, in his oral evidence he said that he had heard Ms Sharrad on occasions using sexually explicit language, generally in frustration.  I do not think his evidence on those matters adds much to the picture of the work environment.  Mr Wright said that he did not, in his job, deal regularly with building consultants although he was available to (and did) discuss particular issues with them.  He did not routinely chat socially with them when they were in the office.  I did not form the impression that Mr Wright would routinely have been exposed to the style of Ms Sharrad’s (or other consultants’) conversations whilst in the office.

56                        Ms Hopko’s evidence was of a general nature.  She has worked as a building consultant with Homes since February 2005, so she commenced about the same time as Ms Poniatowska.  She was not involved directly in any of the particular conduct giving rise to Ms Poniatowska’s complaints, save that during 2005 she obviously had some contact with Ms Poniatowska whilst she was having contact (a deliberately neutral word) first with Mr Flynn and then with Mr Lotito.

57                        Ms Hopko did not work at a display village at the same time as Ms Poniatowska.  Her contact was confined to the Monday morning sales meetings at the head office, and the periodic Thursday morning staff training sessions, as well as some social contact.  She described a training system for file preparation and presentation similar to that described by Ms Poniatowska, namely being assigned to a more experienced sales consultant who showed the process to her.  In her case, it was Mr Flynn.  Subsequently, some considerable time later, she developed and still has a personal relationship with Mr Flynn and they are now engaged to be married.  She agreed, as indeed is self-evident, that the quality of the immediate training is dependent upon the preparedness and skills of the trainer consultant.  She also confirmed that it was common for a contract proposal put forward by a building consultant for assessment and approval by Mr Daminato or others to be returned with requisitions.  There were some examples of her files, requiring apparently extensive requisitions, including in August and December 2005.  That also accorded with Mr Read’s evidence.  She also confirmed, as Ms Poniatowska said, that sometimes building consultants put forward contract proposals which were incomplete because information was awaited from the client.  That was done apparently to get in an approvals “queue”.  Sometimes the additional information was received and included in the file before it was assessed, and sometimes the file came to be assessed and requisitions made before the information was received.

58                        Ms Hopko also gave evidence of some circumstances which, as I understand it, were intended to demonstrate that Ms Poniatowska had at least overstated the significance to her of certain of the conduct she complained of.

59                        At a general level, she said Ms Poniatowska was “very flirtatious” and conscious of her appearance, and wore (what I infer from Ms Hopko referring to it) inappropriate clothing: a “very tight black dress” and “skin tight jeans and mid-riff tops which exposed her stomach”.  She said that such clothing was not worn on days that Ms Poniatowska would be working at a Homes display village.

60                        Ms Hopko also gave evidence of a conversation concerning the accuracy of what Ms Poniatowska had put on her resumé about her marital status (she said she was married, rather than that she was divorced); about having invited Ms Poniatowska to her birthday drinks in June 2005, and getting no expression of concern when she also said that Mr Flynn and Mr Lotito had been invited; about a social conversation after a game of netball in about July 2005 when Ms Poniatowska discussed the fact that Mr Flynn had expressed an interest in catching up with her (Ms Poniatowska) without expressing any concern about his approaches, other than being worried about the accuracy of Mr Flynn’s claim to her that his marriage was not then a happy one; about a social drinks meeting at the Old Lion Hotel in about October 2005 when Ms Poniatowska knew in advance that Mr Flynn would also attend and she showed no apparent discomfort whilst he was there; about a conversation in late November 2005 when Ms Poniatowska said she was interested in catching up with Mr Flynn for coffee; about the December 2005 Hickinbotham Group Christmas party for consultants, including a bus tour and a meal in the Barossa Valley when Ms Poniatowska sat next to Mr Flynn both on the bus and at the meal; and about Ms Poniatowska telling her on a number of occasions that she thought Mr M Hickinbotham was attractive.

61                        I address the significance of her evidence, and the weight to be attributed to it, when considering the various allegations made by Ms Poniatowska.  It is convenient to deal with one part of her evidence at this point.  I do not accept that Ms Poniatowska dressed in a way that was considered inappropriate or unsatisfactory from the employer’s point of view.  Neither Mr M Hickinbotham nor Ms Sharrad said that.  No oral or written comment was directed to her by the employer about that.  It was not said about Ms Poniatowska’s style of dress by any other witness, although Mr Swan suggested that her style of dress was more suited to night outings.  It is unclear why the respondents sought to adduce that particular evidence through Ms Hopko.  If it was to suggest that Ms Poniatowska by her style of dress intended to invite sexual attentions from her co-workers, I do not make that finding for the reasons given.

62                        Mr Daminato has been the Contracts Manager for Homes since 2004, and has worked for the company in all for some 15 years.  He is responsible for reviewing all building contracts submitted by sales consultants.  Until he has approved the proposed contract, it is not executed by Homes.

63                        The file review process is quite a comprehensive one.  The file is presented to him with a quotation form, a sketch plan of the house with modifications as requested to the standard plan, front and side elevation drawings, a site plan with site elevation and dimensions, and a copy of the building contract.  The file should contain identical sets of documents for a draftsperson and for an engineer.

64                        The file, when presented to Mr Daminato, has an outside cover sheet comprising a pro forma document to be completed.  It also has an inside front sheet headed “File Preparation Checklist” which requires the building consultant to tick the various boxes to ensure the necessary material is included.

65                        Mr Daminato then assesses the file to assess its “constructability”: whether the house will fit on the land; the topography and soil content; the construction practices; encumbrances and the sufficiency of the detail.  He also assesses the practicality of the proposal, and whether Homes will accommodate the proposed modifications.

66                        His evidence then recounted his dealings with Ms Poniatowska.  They were confined to occasions when she sought his assistance about a particular issue, or when he requested her to discuss concerns about her files.  He said he soon developed concerns about her files.  I shall consider the significance of his evidence, and the weight to be attributed to it, when considering in particular the first warning letter and the suspension letter.

67                        Mr Swan’s evidence was only peripheral.  He is an experienced building consultant, having worked for Homes for about eight years.  During 2005, he was mainly based in the head office.  He gave his evidence carefully and presented as a thoughtful and balanced witness.  I accept his evidence.

68                        His duties included assisting building consultants, as well as responding to clients who first contacted the head office.  During 2005, Ms Poniatowska spoke to him about once or twice a month to discuss particular problems with a file, seeking advice about how to address them.  He did not suggest that her demands on his time or for his advice were inappropriate or were different from those of the other newer building consultants.  He acted as a supporting referee for her, after the termination of her employment, with another building company.  He was not consulted about giving Ms Poniatowska any of the three warning letters.

69                        His evidence presents a different perspective to that of Mr Daminato and others about the quality of Ms Poniatowska’s file management.  As I indicate below, it is the more significant because – despite the information available to Homes – there was no attempt to compare in any qualitative way the extent of the requisitions generated on Ms Poniatowska’s files with those of other new sales consultants, nor any attempt to make any structured comparison of the extent of recurrent flaws in Ms Poniatowska’s file management with that of other newer sales consultants.  There are other features of the analysis of Ms Poniatowska’s files which I discuss below.

70                        As noted above, Mr Swan’s evidence was that Ms Poniatowska dressed in a different style to other staff; he described it as more suitable for “a night out on the town”.  He did not see the need to make any comment on her dress style when providing a reference for her.  He was unaware of any allegations of sexual harassment of Ms Poniatowska during the period of her employment, or of any inappropriate behaviour by any Homes employees.

71                        I turn to some observations about the evidence of the parties. 

72                        The evidence of each of the principal witnesses is the subject of criticism, and of submissions that that particular witness was not credible or was unreliable.  It will be necessary to deal with the individual allegations, and the reliability of each of the witnesses whose evidence touched upon those allegations, in due course.  However, it is desirable to make some general observation about each of the principal witnesses at this point.

73                       
The evidence of Ms Poniatowska contrasted sharply with that of almost every other principal witness.  Senior counsel for Ms Poniatowska submitted that she should be accepted as a generally credible witness, and should be preferred against the evidence of Mr M Hickinbotham, Ms Sharrad, Mr Daminato and Mr Lotito where their respective evidence conflicted.  Counsel for the respondents (other than Mr Lotito), in a very detailed submission, identified 64 “issues” concerning the credibility of Ms Poniatowska.  He contended that, except in respect of certain parts of the evidence of Mr Lotito, I should prefer in each instance the evidence of the witnesses called by the respondents where it contradicted any evidence of Ms Poniatowska.

74                        I have carefully considered all the respective submissions.  I will address certain of the matters specifically mentioned in the submissions made on behalf of the respondents (other than Mr Lotito) when addressing individual allegations.  I have come to the view that I should, as I do, accept some of the evidence of Ms Poniatowska and some of the evidence of Mr M Hickinbotham, Ms Sharrad and Mr Daminato.  It is convenient to record my general assessment of those principal witnesses at this point.  As I noted, there was a conflict of evidence to a degree, not only about the specific incidents alleged by Ms Poniatowska, but also on the part of the Hickinbotham Group and its senior staff about its work systems and processes and about the comparative quality of its building consultants in their file preparation and presentation.

75                        In my view, Ms Poniatowska was an honest witness, endeavouring to tell the Court as accurately as she could what had occurred.  She was direct, and apparently spontaneous in her answers.  She was asked some questions to which she responded straightforwardly that she did not know the answers, although she might easily have given a positive response.  Where she was confronted with particular assertions as to the accuracy or inaccuracy of certain events, or it was suggested to her that she was deliberately misleading about certain events, she responded in a convincing way.  Obviously, she feels strongly that her treatment in the course of her employment with the Hickinbotham Group was inappropriate, and that the termination of her employment was unjustified.  I think that may have coloured her assessment of the significance of, or reasons for, certain of the events addressed in the evidence.  There is a tendency in all of us to put past events in a perspective which fits with our own beliefs, but there is an undisputed core of fact underlying many of her allegations, and a body of evidence upon which she could, for example, rationally claim that the reasons given for her termination and for the three warnings she was given were not the real reasons for her termination or for those warnings.  In some incidental respects, as I have noted, her evidence accords with the evidence of Mr Read and Mr Swan, and indeed is generally in accordance with the evidence of Mr Lotito (other than in relation to the particular allegations she has made against him).  Where her evidence seeks to attribute motive to others by inference, whilst I accept her genuineness, I do not place any real weight on that part of her evidence.  It is necessary to determine motive upon the whole of the facts as I have found them, unencumbered by her own attribution of motive to others.  It is convenient to note at this point that I do not regard certain communications with Mr M Hickinbotham which indicate an appreciation for his support of her (in particular an email of 30 September 2005 and a Christmas card of December 2005) as detracting in any significant way from the specific findings referred to below.  Such communications, in the overall context, are more likely to have been an endeavour to secure his empathy and support in the position she then thought she was in.

76                        I have reached a similar assessment about the evidence of Mr M Hickinbotham.  He is clearly an experienced and competent managing director of the Hickinbotham Group.  He gave his evidence in a generally straightforward way.  As with Ms Poniatowska, I thought that hindsight had led him in some respects to present a more favourable picture of certain events than was in fact the case.  I suspect his loyalty to his senior staff, in particular Ms Sharrad, led him not to pay as much attention to the particular complaints of Ms Poniatowska, or her requests for the opportunity to discuss matters with him, as were warranted.  That in turn has led him to have adopted an incomplete or insufficient view about the nature and extent of the conduct of which she was complaining.  There were also a number of occasions when I considered that his answers were apparently ritual and rigid, rather than as responsive as might have been expected.  Again, that may be because he was not as involved in certain of the relevant events as he now says he was, so he was to some degree unconsciously reconstructing those events in a more favourable way than was the fact.  Also, at a few points in his evidence, I think his demeanour exhibited a very defensive posture, suggesting to me that he was trying to rationalise the events into a template of proper and responsive behaviour by himself and by the Hickinbotham Group in a rather contrived way.  In particular, I refer to the investigation of the Pearson complaint, and its significance to the termination of Ms Poniatowska, together with more generally the reasons for her termination.  I address that in detail below.  There are some other features of his evidence which affected my assessment of his reliability as a witness on particular matters which I have mentioned in the course of these reasons.  Again, therefore, whilst I accept him as a generally truthful witness, I have not accepted everything that he has said.  I have indicated below what parts of his evidence I have not accepted on significant matters, including the one very significant respect as to the reasons for the termination of Ms Poniatowska’s employment.

77                        I did not find Ms Sharrad a consistently impressive witness.  My overall assessment was that she presented as favourable a picture as possible concerning the actions of herself and of Homes consistent with that which the objective data, as she understood it, would allow.  On occasions, that approach was exposed as simply procrastination.  At one point in her evidence, after a break, her style of answering questions changed quite significantly from an assertive one to one where she simply sought to say as little as possible, and there were parts of her evidence which, I thought, did not line up with commonsense.  In making that observation, I have taken into account certain personal and private issues she has had to deal with in the course of her evidence.  Whether she was driven by a sense of loyalty to the Hickinbotham Group in the content of her evidence overall is unclear.  It probably does not matter.  One submission to support her reliability was that she had answered questions adverse to her interests directly; reference was made in particular to the June 2005 allegations.  I have taken that submission into account, but it must be balanced against the acknowledgment of an inappropriate comment made by Ms Sharrad contained in a letter of 9 August 2005 from Mr M Hickinbotham to Ms Poniatowska referred to below.

78                        Overall, in a number of respects, I found the evidence of Ms Sharrad unsatisfactory.  I have not placed much weight upon it, where it is contradicted by other apparently cogent evidence.  Where I have made a significant finding of fact inconsistent with her evidence, I have sought to explain the reasons for that finding.  I also drew from Ms Sharrad’s evidence a picture of the robustness of the work environment, reflected in my findings below.

79                       
The written contention on behalf of Ms Poniatowska did not separately assert that Mr A Hickinbotham or Mr Flynn were unreliable witnesses.  Their respective roles were relatively limited in the overall picture.  I shall address their evidence in the course of considering the allegations concerning each of them.

80                        Mr Lotito’s evidence dealt with both general matters about the work systems and the work environment, and about the Lotito allegations.  As to the former, his evidence accorded generally with that of Ms Poniatowska and some others, and I accept it.  It reinforces my findings below on those topics, in particular about the robustness of the work environment.  As to the latter, for the reasons given when considering the Lotito allegations, I do not accept it.

81                        As I noted above, that leaves the witnesses going solely to the issue of damages.  I shall deal with them separately, after considering whether the claim or claims of Ms Poniatowska should succeed on the issue of liability.

THE WORK SYSTEMS AND THE WORK ENVIRONMENT

82                        It is clear that the business systems of Homes were not perfect.  That is not of itself of special significance.  Nor, I suspect, is it untypical of many similar workplaces.  Progressively, workplaces have introduced policies to avoid discrimination in the workplace, for making complaints about the behaviour of co-workers, and for dealing with such complaints.  Homes had not done so by 2005 or early 2006.  Nor is there any evidence that, informally, there were systems or processes in place for addressing such matters.

            More generally, it is also clear that the system for the training of newly appointed building consultants was somewhat haphazard.  That extends from any formal induction training, including awareness of any policies and procedures, to technical training.  The contract of employment for each building consultant was a letter of offer countersigned by the new building consultant.  It required the new employee to sign the Code of Conduct for Building Consultants.  No building consultant who gave evidence proffered any real awareness of its contents, and the evidence does not suggest that its contents were the subject of specific instruction. 

83                        Ms Sharrad as the Team Leader was generally responsible for the training of newly appointed building consultants.  Her practice was to assign a new building consultant to one with some experience, so that the experienced consultant would impart the necessary learning.  Obviously that depended on the commitment and availability of the more experienced consultant; the evidence shows that varied as between building consultants.  In the case of Ms Poniatowska, she was assigned to Ms Sharrad for supervision and instruction.  It is common ground that, due to other duties, Ms Sharrad had little time to fulfil that role so Ms Poniatowska had less training than others through that structure.  Ms Sharrad said that Ms Poniatowska was first assigned to another building consultant to be trained, but that did not satisfactorily occur.  After it became apparent that Ms Sharrad could not do so, she assigned Mr Read to train Ms Poniatowska.  He showed her around the display villages and gave her a “brief rundown about how files should be prepared”.  He had resigned by that time, but undertook that form of training over a period of a few weeks.  Mr Read said it took him some six to twelve months to master the skill of putting a file together properly.  Ms Poniatowska, like others, sought assistance from other building consultants while she was at a display village.  In addition, there was as noted a regular Monday morning meeting of all building consultants at the head office.  They were each interviewed separately by Ms Sharrad to address their progress; sometimes Mr A Hickinbotham or Mr M Hickinbotham also participated.  There is nothing to indicate that such sessions were structured in a particular way, or that there was any checklist worked through to assess the quality of a consultant’s performance.  I find that the main focus of those meetings was to discuss sales progress, and to give ad hoc advice as to how potential sales might be progressed, rather than to discuss or give instructions about more technical matters such as file preparation and presentation.

84                        In addition, the Monday morning meetings were a time when building consultants could individually work on files, discuss queries with others, seek advice either formally or informally from their peers, and generally discuss matters.  I find that those meetings were in a robust environment.  By that I mean that not infrequently the language was coarse, sometimes vulgar, and sometimes sexually explicit.  I do not need to consider whether it was atypical of other similarly sized offices, whether in the building industry or in other industries.  There is nothing to suggest that that quality of communication was disapproved of, or that (apart from Ms Poniatowska) it caused discomfort to building consultants.  In particular, there is nothing to indicate that those using that style of language were either asked not to do so or were reprimanded for having done so.  In fact, I find that Ms Sharrad was amongst those who participated in that style of conversation.  There was, therefore, no natural inhibitant to its use.  I will use the word “robust” to describe that environment.

85                        It is in that general work environment, including not infrequent sexually explicit language and references, that in my view Ms Sharrad did not respond in an appropriate way when Ms Poniatowska complained to her of having received the email communications from Mr Flynn referred to below, and responded in an unsupportive and dismissive way (as I find below that she did) when Ms Poniatowska reported those communications to her (the May 2005 allegations).  It is also in that context that Ms Sharrad could consider it appropriate to have made the comment about Mr Lotito which she acknowledges (the June 2005 allegations).  It is further in that context that it is, in my view, appropriate to determine and assess the quality of the response of Ms Sharrad and Homes to the complaints of Ms Poniatowska from time to time and the way in which Ms Poniatowska then reacted to the handling of her complaints or reports of inappropriate conduct.

86                        I return to the system of instruction of new building consultants.  On Thursday mornings, sometimes but not regularly, there was a training session for building consultants at which all must attend.  There is no clear evidence as to the content of any one or more of those training sessions.  That is perhaps a measure of the lack of any structured development program for building consultants by Homes.  No record was produced showing their dates or the presenters or the topics addressed.  I suspect that those training sessions, when conducted, were intended to be informative to building consultants of processes they might find to their benefit in selling houses or house and land packages on behalf of Homes.  There is a document entitled “Construction Services Australia Training Guide” which Ms Sharrad said, and I accept, was used by her as a basis for topics discussed on some of the Thursday morning training sessions.  There are nine topics listed, including “Preparing a Quote”; “Siting a House on a Block/Site Plans”; and “Preparing a File”.  Ms Sharrad spoke on some of those topics, and Mr Daminato on “Preparing a File”.  The detailed content of particular presentations was up to the presenter.  Other topics relate to knowledge of the product, qualifying a buyer, including as to finance, sourcing a block of land (apparently not applicable to the Hickinbotham Group), closing the sale, and generally representing the Hickinbotham Group. 

87                        I find that there was no system for the routine and formal assessment of the work of building consultants.  There is no evidence adduced on behalf of the respondents (other than Mr Daminato) to indicate to the contrary.  Clearly, if there were any such documentary evidence available, it would have been produced.  I infer that it was not maintained.  In particular, there is no evidence of any record of Homes routinely assessing the quality of work of building consultants, other than broadly being aware of the sales they had effected.  There is no evidence of any record suggesting that there was any routine analysis of the quality of their file preparation or presentation, or any comparative analysis of it.  There is no evidence of any record on any building consultant’s file of particular assessment of their file preparation or presentation, or of any discussions with them on such matters.  There is nothing to suggest that Ms Sharrad, as the person in charge of the building consultants, noted on each personnel file the topics discussed at the weekly Monday meeting or indeed made any note of those discussions.  Nor is there any record to suggest that Mr Daminato kept any record of any particular discussion he had held with any building consultant, or caused any record of any such discussion to be placed on a personnel file or elsewhere.  He caused the written requisitions to be entered on a general computer record, but no evidence suggested that was then used as a tool to control the quality of file preparation and presentation of building consultants generally, or used as a basis for selecting (for example) Thursday training topics.

88                        There is no evidence of any record of any consideration of the quality of Ms Poniatowska’s work leading up to the time when her probation period expired.  There is no record of any discussions held with her either by Ms Sharrad or Mr Daminato counselling her about the quality of her file preparation and presentation.  There is no written communication from Mr Daminato to Ms Sharrad or to Mr M Hickinbotham reporting of his concerns about those matters, or suggesting that she have particular training or counselling.  Both Ms Sharrad and Mr Daminato said that they discussed their shared concerns about Ms Poniatowska’s file preparation a few times during 2005, and that each spoke to her about her file preparation and presentation on a number of occasions during 2005.  I accept that those conversations occurred, but I find that they were not in any sense communicating a dissatisfaction with Ms Poniatowska’s work standards but were expressed to encourage her to do better with her file preparation and presentation.  Had they been of concern, at least some internal record of them, or some of them, would have been maintained.  There is no evidence of any such record, and I infer none exists. 

89                        The analysis of the printout of the requisition slips applicable to Ms Poniatowska’s files does reveal that on 11 May 2005 Mr Daminato’s comments included “This is not the way a file is to be presented”.  That occurred well before the expiry of the probation period.  It was not followed up by any structured training, nor entered into any formal personnel record.  It was necessary to go back through the computer-retained records of requisition slips to identify it.  The other particular entry along those lines pointed out in submissions was a requisition slip of 11 October 2005 which, as the printout reveals, records: “Gosia I keep noting the same errors & omissions on your files.  You need to improve on your documentation”.  The same observations may be made about that requisition.

90                        Ms Poniatowska was cross-examined about the details of a number of the requisition slips, as contained in the printout.  She showed an understanding of the requirements of file preparation and presentation.  As to particular requisitions, some she could not comment on without reference to the file; some she acknowledged; in one instance where she recalled the particular construction, she explained that it was a complex building which had been difficult to convey through the file.  I was told during the evidence that Homes did not discover the requisition slips (or the computer records relating to them) of any other building consultants.  That may explain why no detailed comparative analysis of such records concerning Ms Poniatowska and other new building consultants was adduced.  That was a decision for the Hickinbotham Group and Mr M Hickinbotham, and could clearly have been carried out by Mr Daminato.

91                        The Training Guide referred to is a template, to be completed with the name of the building consultant and the rating of the Team Leader (Ms Sharrad) and of the employer company.  There is no evidence that it was ever completed, either in relation to Ms Poniatowska or any other building consultant.  There is no evidence that indicates that Mr Daminato on any other occasion had provided a warning letter such as the first warning letter to any other building consultant.  For reasons which I have discussed below, I do not accept that he instituted the first warning letter entirely unprompted.  Indeed, as I have noted, there is other evidence, particularly from Mr Swan which tends to suggest that Ms Poniatowska’s file maintenance and preparation and presentation was not abnormally unsatisfactory or that her queries of him for assistance or advice were out of the ordinary. 

92                        It is, of course, a matter for Homes as to what records it chooses to maintain.  It is not the role of the Court to require it to have maintained fulsome business records of such matters.  I infer that such records, if they existed, would have been produced as evidence by the Hickinbotham Group.  The absence of such records is, in my view, of some significance in assessing, in particular, the reasons for the first warning letter and the subsequent communications leading up to Ms Poniatowska’s termination.

93                        Of course, this matter is not about the quality of training of building consultants.  The above findings are only background to the allegations of Ms Poniatowska that, to the extent that her suspension and termination were attributed to her file preparation and presentation, the Hickinbotham Group contrived that reason for her suspension and termination.  It is not inconsistent with her allegations that her file preparation and presentation did require the attention of Mr Daminato routinely (as, it appears, did the file preparation and presentation of a number of other building consultants), or that both Mr Daminato and Ms Sharrad spoke to her informally about particular features of her file preparation and presentation.  However, I do not accept the suggestion on behalf of the Hickinbotham Group that Ms Poniatowska was unique among building consultants in omitting the same documents repeatedly from a file or in making the same errors repeatedly in relation to a file.  Given my concern about the reliability of the evidence of Ms Sharrad and, as discussed below, certain of the evidence of Mr Daminato, I do not accept their evidence to the extent that it suggested to the contrary.  There is some documentary and oral evidence that routinely all, or nearly all, contract proposals submitted to Mr Daminato resulted in requisitions.  There is no analysis of them to explain why Ms Poniatowska’s files requiring requisitions were so different, although it was in the power of the Hickinbotham Group to have adduced such evidence.  It did not do so.  There is no evidence of any record either on Ms Poniatowska’s personnel file or otherwise identifying any concerns peculiar to her, or recording the need for particular training or counselling.  The evidence of others, such as Mr Swan, does not support the suggestion that she was uniquely inadequate in her file preparation and presentation.  There is evidence that building consultants not uncommonly submitted incomplete files, in anticipation of a delay in their assessment whilst further documents were received.  There is evidence that other building consultants inadequately priced proposals.  There was evidence that on occasions Homes agreed to resolve disputes with clients by paying for additional works, arising from a misunderstanding between the client and the building consultants.

94                        I have not overlooked the evidence of Mr M Hickinbotham.  This is one of the parts of his evidence which I consider has been reconstructed.  He may have mentioned to Ms Poniatowska the need to ensure good file preparation and presentation, but I do not accept that he did so in a context of reproving her for how she was doing that task, either formally or informally.

THE APRIL 2005 ALLEGATIONS

95                        On this matter, Ms Poniatowska’s initial statement was quite brief.  She said that in early April 2005, on the first occasion she met Mr A Hickinbotham, he commented to her that she had “two good assets” whilst staring at her breasts.  That is said to have occurred at a formal sales meeting on a Monday morning in the presence of Ms Sharrad.  The allegation was disputed. 

96                        As noted, Mr A Hickinbotham has had a long career in land development and housing development since 1955.  The Hickinbotham Group is a family group of companies.  During 2005 and 2006, he maintained an active interest in its business, attending the head office regularly although not full time.  He periodically participated in or sat in on the one-to-one sales meetings held by Ms Sharrad with building consultants on Monday mornings.  He did so on one or two occasions at which Ms Poniatowska was present.

97                        Mr A Hickinbotham denies having made the comment attributed to him.  He did not learn of the allegation until Ms Poniatowska’s application to the Industrial Relations Commission of South Australia made on 10 March 2006, well after the termination of her employment and nearly 12 months after the alleged April 2005 incident.  Indeed, there is nothing to suggest that Ms Poniatowska raised this allegation at any earlier point of time.  It is an indication of Mr A Hickinbotham’s level of involvement in the affairs of the Hickinbotham Group’s day to day operations that he also did not learn of the May 2005 allegations, the June 2005 allegations, the Lotito allegations, the August 2005 allegations or the September 2005 allegations at any time prior to 10 March 2006.  Given his position in the Hickinbotham Group at that time, that is not surprising.  Ms Poniatowska did not claim to have mentioned them to him either formally or informally.  He was in a general way aware of the fact that Mr M Hickinbotham and Ms Sharrad were taking steps which eventually led to the termination of Ms Poniatowska’s employment, but again there is nothing to suggest that he had any role to play in that sequence of events.

98                        I have no reason to reject Mr A Hickinbotham’s evidence.  It was given in a direct way.  Not surprisingly, given his limited role, he was a little imprecise about dates and events.  That is understandable as he did not learn of the allegation until nearly 12 months after the events to which it refers.  However, he was adamant that he did not say what Ms Poniatowska attributed to him, and that he would not have spoken in that way and I accept that he would have recalled making such a comment.  In that regard, I have taken into account the delay in Ms Poniatowska raising her concern.  It may be that she was hesitant in making any complaint, given her relatively new position as a building consultant.  However, by August 2005 she had complained not only of the conduct of Mr Flynn and Mr Lotito, but of Ms Sharrad, her supervisor, I think that the time had come when she might have been expected to have made formal complaint about that conduct if it occurred.  That is, although I have not overlooked that one explanation for the delay in raising the matter may have been her position in Homes, I do not think that that explanation would sufficiently explain why she did not mention her concerns earlier than she did.  I have also considered both whether Mr A Hickinbotham may have made that comment, or one similar to it, having regard to the context of what I have found to be a robust work environment, at least at the Monday morning sessions with the building consultants, including the use of vigorous language which some may have regarded as offensive. 

99                        As I indicated in my consideration of the general creditworthiness of Ms Poniatowska, there are aspects of her evidence which I think are the result of reconstruction over time.  I conclude that this is one of them.  I do not accept that the incident the subject of the April 2005 allegations occurred.

THE MAY 2005 ALLEGATIONS

100                      The primary facts are not in dispute. 

101                      Mr Flynn was employed as a building consultant by Homes in April 2004, but he works only at the Hewitt Display Village at Gawler.  He was married when he commenced that employment, but by early 2005 his marriage was not a happy one.  He and his wife subsequently divorced.  He is now engaged to Ms Hopko.

102                      As in the normal course, he and Ms Poniatowska met, together with other building consultants at the Monday morning meetings of building consultants with Ms Sharrad at the head office.  He called it the “fish bowl”, as others apparently did.  He said that in the first several weeks of her employment, Ms Poniatowska flirted with him, but upon his cross-examination I did not discern that the conduct which he identified as flirting amounted to such conduct.  In any event, even if he did think she was flirting with him, that does not justify all of his subsequent conduct. 

103                      On 8 May 2005, Ms Poniatowska received an email from Mr Flynn.  She recognised it as coming from one of her colleagues.  It was in the following terms:

Hi Gosia,

I hope you don’t mind me contacting you.  I see you briefly every Monday but can’t really chat cos we are always so busy and there are too many people around.

Tell me more about yourself.  I thought you were happily married so I never bothered to chat to you too much.

I am married but it is really only for the sake of my son.  We fight like cat and dog, but put on a show for everyone around.

I think you are a very attractive woman and would love to catch up and have a little fun some time if your (sic) interested.  I wouldn’t want it to affect our working relationship, but it shouldn’t because we will never really work together so it shouldn’t be a problem.

If I’m out of line let me know and I hope I haven’t embarrassed you.

Chat soon

Mark xo

104                      Ms Poniatowska did not take up that invitation.  She responded by email that she was not interested in any “fun”, but would be happy to chat with him as a friend and co-worker so she could pick up on his experience as a successful building consultant.  That email response is not in evidence.  Mr Flynn said that it set out some of Ms Poniatowska’s qualifications and family background, and invited him to lunch to discuss work matters.  That is consistent with Ms Poniatowska’s evidence.  Mr Flynn in his evidence in chief said that he took that as an expression of interest in a further meeting beyond a working or merely work/friend relationship, rather than, as he put it, simply saying “we have nothing in common”.  Ultimately, but with some reluctance, Mr Flynn agreed that Ms Poniatowska’s response indicated to him that she did not want a sexual relationship.

105                      She said she was humiliated and shocked by his unsolicited email, but wished to preserve a friendly position given that they were work colleagues.  That is understandable and I accept that was her motive for the terms of her response.

106                      Notwithstanding Mr Flynn’s understanding that she did not wish to explore a sexual relationship, he sent a further email on 10 May 2005.  It was in the following terms:

Hi Gosia,

Well you certainly are an interesting and inspiring individual.  I only have one master’s degree in science, but who’s counting egh!

I would like to catch up with you some time, but my life is very hectic.  If I’m not trying to flog these bloody houses, I’m out in the country mountain biking.

To be honest my approach was far more superficial.  I thought that maybe you were sexually interested in me.  My sex drive is extremely high and my wife appears to have none, which is one of our many problems.  You have an incredible body and I have fantasized about you many times.

I am guessing this is not quite what you were looking for so it may just be better that we forget about my indiscretions and remain work associates.

Chat soon

Mark

107                      I do not consider that that email is consistent with Mr Flynn’s asserted understanding of Ms Poniatowska’s communication as given in his evidence in chief, that in effect the door to a sexual relationship had been left open. It reads as if he had been told (as Ms Poniatowska said) that she was not interested in sexual relations with him.  It is nevertheless quite explicit, and contains another invitation to enter upon such a relationship.

108                      Ms Poniatowska did not respond to that email.  Mr Flynn then sent at least two further SMS text messages to her because, he said, he was concerned that he may have offended her.  The precise terms of those text messages are not known.  Mr Flynn said that “they were to the similar effect of my second email” and that they were “a follow up given the lack of a response to my second email”.  If they were in the same general terms, they were also inappropriate.  It is easy enough simply to apologise and to regret the sending of the first email without the references to his sexual prowess and his comments about Ms Poniatowska’s appearance which appeared in the second email.

109                      On 15 May 2005, Mr Flynn sent Ms Poniatowska a third email.  It read in part:

I haven’t heard from you since my last e-mail, and I have sent you a number of text messages.

I am concerned that I have offended you.  And that you would say something about this at work so I just need to let you know a few things about me.

Mr Flynn then referred to an earlier business he had run, its failure, and its financial and physical cost to him, and in his desire to succeed in his present position as a building consultant with Homes.  He then added:

Why am I telling you this?  Well I am concerned that by misjudging the way that you look at me and writing the stupid e-mail that I have upset you enough that you would say something at work.  I am begging you not to, as I don’t think I could start all over again.

I will not contact you again after this e-mail.  I have realized how stupid I have been.

110                      Ms Poniatowska then reported those communications to her team leader, Ms Sharrad.  She responded “what do you expect with a face like yours”.  Ms Sharrad took no further action on that matter.  She did not refer it to Mr M Hickinbotham.  She did not take it up with Mr Flynn, so, not surprisingly, the first time that Mr Flynn learned of Ms Poniatowska having formally reported his communications was when they were brought to his attention following her unfair dismissal claim commenced in the Industrial Relations Commission in South Australia in March 2006.

111                      The respondents (other than Mr Lotito) attacked the credit of Ms Poniatowska by reason of her description of the content of these communications.  First it was put that Ms Poniatowska wrongly attributed to the email of 10 May 2005 a request for sexual relations when (it was argued) the plain reading of it does not support that meaning.  I do not accept the premise.  It is hard to think of any other purpose for the third paragraph of that email than to keep the door open to the prospect of sexual relations.  Secondly, it was put that the intervening SMS text messages between the second and third emails could not have been of a sexual nature, as Ms Poniatowska said in her evidence, and that they could not have included a statement, as Ms Poniatowska says, that Mr Flynn “was thinking about [her] arse”.  I do not accept that those SMS text messages were merely apologetic.  Mr Flynn said that they were “to the similar effect” of the second email.  At another point he said that there was nothing in them that “was more provocative than my second email”.  As I have indicated, the second email was not merely apologetic.  I consider that it was an attempt to keep open the opportunity for sexual relations.  On that basis, the SMS text messages to the same general effect probably sought to convey the same expression of interest on his part.  It is consistent with that purpose that Ms Poniatowska felt strongly enough about them to report the matter to Ms Sharrad. 

112                      Ms Poniatowska may have overstated the position to say that one or more of those SMS text messages referred to Mr Flynn “thinking about [her] arse”, because she had not mentioned that particular expression in any communication prior to giving evidence.  That does not cause me to doubt the general thrust of her evidence.  That is particularly so as the second email referred to her “incredible body” and to Mr Flynn having fantasised about her.  It is not unlikely that Mr Flynn would have said something more about her physical attractiveness to him in those SMS text messages, even though he also wanted her to “forget about [his] indiscretions”, because he did so in the second email.  However, I do not accept that Ms Poniatowska correctly attributed to the third email a request for sexual relations.  It did not do so.  It is an attempt, on the part of Mr Flynn, to avoid Ms Poniatowska reporting the matter to the Hickinbotham Group.  Indeed, it is consistent with the terms of that email that Mr Flynn by the earlier emails and SMS text messages appreciated by then that he may have overstepped the limit of acceptable workplace communications.

113                      The respondents also argued that I should discount Ms Poniatowska’s evidence about the May 2005 allegations, and generally discount her reliability as a witness, for two other reasons connected to the May 2005 allegations.  The first involves a direct issue of credit.  Ms Sharrad denied that Ms Poniatowska reported the matter to her at all.  For the reasons given when discussing generally the credit of the witnesses, I prefer the evidence of Ms Poniatowska on that topic.  It is consistent with the findings I have made about the workplace that Ms Sharrad is likely not to have appreciated the significance of such a complaint, or to have reacted to it.  It was a robust workplace.  There was no internal protocol or procedure for addressing such a complaint, and I suspect that she regarded such behaviour as something for Ms Poniatowska and Mr Flynn to sort out unrelated to her responsibilities.  Finally, in relation to this incident, the respondents point to the fact that on 5 May 2008, Ms Poniatowska told Dr Ewer (a medical doctor whose evidence is referred to below) that she was not “unduly troubled by Flynn’s behaviour”, and more generally that it did not consistently feature in all Ms Poniatowska’s statements of or reports of her concerns.  These comments do not affect my assessment of her credit in relation to the May 2005 allegations or generally.  It is consistent with Ms Poniatowska’s behaviour at the time: she ignored his SMS text messages and emails after she responded to the first email and after reporting his behaviour, she simply continued to do her work and to have such routine contact with building consultants, including Mr Flynn, as occurred in the normal course.

114                      There was further contact between Mr Flynn and Ms Poniatowska outside the weekly Monday meetings at the head office.  Those meetings occurred in a group environment.  Both Mr Flynn and Ms Hopko gave evidence of some social occasions when he and Ms Poniatowska were present.  One was at a cocktail party in the home of Mr A Hickinbotham in October 2005.  I do not discern from the evidence of Mr Flynn that Ms Poniatowska behaved other than in a normal way at that function.  In addition, my view is that Mr Flynn took a somewhat artificial view about the propriety of his conduct, as illustrated for instance by his apparently grudging acceptance of the fact that Ms Poniatowska’s email indicated she did not want a sexual relationship with him.  I prefer her evidence about her behaviour at that function.  It was entirely proper.  The second was an arranged drinks meeting at the Old Lion Hotel.  There were several people present, including Mr Flynn.  Whether or not Mr Flynn bought drinks for Ms Poniatowska and whether or not she asked him to walk her to her car, I do not consider that there is anything which occurred on that occasion which was inconsistent with him having engaged in the conduct relating to the May 2005 allegations, or with Ms Poniatowska having been concerned and upset by it and having reported it to Ms Sharrad.  The third was the Hickinbotham Group Christmas party at the Barossa Valley, and then a number of building consultants including Ms Poniatowska and Mr Flynn having gone to the Old Lion Hotel afterwards for further drinks.  I accept that Ms Poniatowska sat next to Mr Flynn on the bus and at the lunch, but on each occasion it was with a group of building consultants.  Her conduct thus gives no reason to change or qualify the findings I have made about the May 2005 allegations or her credit generally.

115                      I note Mr Flynn’s evidence that, at the drinks after the Christmas party, Ms Poniatowska directly approached him and asked if he was still interested in catching up with her.  She denies that conversation.  I am not satisfied that it occurred as Mr Flynn suggested.  I formed the impression that he took a somewhat self-centred understanding of any communications between him and (at least) Ms Poniatowska, so there is scope for them to have had some conversation which he understood to have had the effect he claimed, but which did not in fact have that effect.  Beyond that I do not need to make a finding about precisely what Ms Poniatowska said to Mr Flynn on that occasion, as it would not affect my assessment of her overall evidence in relation to the May 2005 allegations or generally.  I am satisfied that she did not communicate to him on that occasion in a way which was inconsistent with having understood Mr Flynn’s communications constituting the May 2005 allegations as she claimed, and as I have found them to have been, or with having reacted to them and reported them in the way she described.

THE JUNE 2005 ALLEGATIONS

116                      Ms Poniatowska’s allegations concerning Mr Lotito relate to the period in and after June 2005.  Mr Lotito commenced working for the Hickinbotham Group during the early part of 2005.  He resigned from that employment of his own accord towards the end of September 2005.  He now works for another construction company, in a different capacity from that as a building consultant.  Upon the commencement of his employment, he was trained by Mr Flynn.

117                      On matters as to the business operations of Homes generally, his evidence accords with that of Ms Poniatowska, Mr Swan, and Mr Read except in one significant respect.  That is as to the quality of the conversation in the work environment, which he also called the “fish bowl”, at the head office where the building consultants met on Monday mornings.  He described a picture of a much more robust work environment than that referred to by other witnesses.  There was frequent course language, sometimes with sexual connotations, which he described as “normal office banter”.  Ms Sharrad was one of the persons he identified as commonly speaking in coarse language.

118                      Apart from that, he described the Monday morning meetings as regular, and the Thursday training sessions as spasmodic, and occurring mainly when there were new brochures to be explained.  There was little formal training, and none to do with sex discrimination or sexual harassment.  There were no policies or procedures concerning those matters.  He described it as a relaxed workplace without much in the way of policies and procedures, apart from those relating to selling contracts.

119                      He did not consider that Ms Poniatowska dressed differently from other female building consultants.  He specifically said that her dress style was not apparently different from that of Ms Hopko.  There was no time at which, so far as he was aware, senior management of Homes addressed the building consultants as to their dress standards, and no memorandum which he saw touching on that topic.  That accords with the evidence of Ms Poniatowska.

120                      Mr Lotito also gave evidence of some discussions he had with Ms Sharrad and Mr M Hickinbotham regarding the quality of Ms Poniatowska’s work.  As he left the employment of ESA in September 2005, those conversations must have taken place before that date.  Mainly, I find, those conversations concerned her sales ability and her ability to communicate with potential clients of Homes.  He said it was a not uncommon experience when the sales skills of certain building consultants were discussed, including but not especially said of Ms Poniatowska, that Ms Sharrad would remark along the lines of “fuck her, if she’s no good she can go”.  He heard such comments at the Monday morning meetings from time to time.  He was also invited to the office of Mr M Hickinbotham on a few occasions (I find in late June or early July 2005) when he was asked about Ms Poniatowska’s work performance.  He recalls that the conversations with Mr M Hickinbotham concerned her communication skills, and her sales skills.  I do not consider that those conversations about the quality of Ms Poniatowska’s work have any especial relevance to resolution of the issues in dispute in this proceeding.

121                      Ms Poniatowska alleges that in early June 2005, she was told by Ms Sharrad that she would be working with Mr Lotito at the Seaford Rise Display Village.  She claims that she asked not to be directed to work with him as she did not feel comfortable working alone with him, but was told that she had no choice about the matter.  She felt uncomfortable because of her experience with Mr Flynn.  She also says that Ms Sharrad told her in the open office area at about that time “I told Remo not to fuck my consultants” or words to that effect, in the presence of other staff.  Ms Sharrad does not dispute that such a communication occurred.  She says she said: “I have already told him not to go fucking my women”.

122                      There is some factual dispute about the circumstances in which the June 2005 allegations occurred.  Ms Sharrad said Ms Poniatowska asked to have Mr Lotito assigned to work with her.  Ms Poniatowska said she thought Mr Lotito was assigned to work with her, so that she might engage in some inappropriate conduct, and so be vulnerable to termination.  I do not accept either of those matters.  Ms Poniatowska denied that she asked to work with Mr Lotito, and I accept her evidence.  There is no reason why, in my view, she would have done so.  However, as I indicated earlier, where Ms Poniatowska has ascribed a motive to certain conduct I do not accept such evidence as proof of that motive; whilst, in the events which have happened, her suspicions are understandable, there is no evidence to support such a conclusion.  I reject her claim that she was allocated to work with Mr Lotito to inveigle her into conduct leading to her dismissal.  At that time, she was still in a probationary period and could have been terminated up to the end of that period in any event.  In my view, the assignment of Mr Lotito and Ms Poniatowska to work together occurred routinely.  It may have followed, or been accompanied by, some conversation between Ms Sharrad and Ms Poniatowska.  In that event, the conversation is likely to have been routine.

123                      However, I accept Ms Poniatowska’s evidence that she expressed a concern about working with Mr Lotito, and I find that Ms Sharrad’s acknowledged comment was made in that context.  It is also supportive of, and consistent with, what I have found to have been a robust environment that Ms Sharrad made that comment, and did so in the office area where others could hear it.  I find that she did so.  It may not have been intended to have caused Ms Poniatowska any embarrassment or discomfort, but it was inappropriate and I accept Ms Poniatowska’s evidence that it did cause her embarrassment and discomfort.  More importantly, it was not an appropriate response in such circumstances, especially in the light of Ms Sharrad’s awareness of the May 2005 allegations concerning Mr Flynn.

124                      Ms Sharrad said she made the comment “as a joke” and she was “smiling” when she said it.  She also thought Ms Poniatowska may have been vulnerable even though Ms Poniatowska asked for Mr Lotito to be allocated to work with her.  I have rejected her evidence that Ms Poniatowska asked to work with Mr Lotito.  Ms Sharrad did not know how Ms Poniatowska came to know Mr Lotito sufficiently to have made such a request, and there is no evidence from either Mr Lotito or Ms Poniatowska that they had any contact which might have led to such a request prior to Mr Lotito being allocated to work with Ms Poniatowska in June 2005.  Ms Sharrad said in evidence that she did not habitually use sexually explicit language and that it was an exceptional conversation.  However, I do not accept that evidence.  It is inconsistent with other evidence I have accepted, including that of Mr Lotito and to a degree Mr Read.  Indeed, Ms Sharrad’s version of what she said appears to me to be more indicative of habitual robust language; as noted above, she claimed to have said:  “I have already told him [Mr Lotito] not to go fucking my women”.

125                      Ms Poniatowska complained to Mr M Hickinbotham about that behaviour by Ms Sharrad.  She did not do so immediately, but within a few weeks, that is by the middle of June 2005.  I find the complaint occurred prior to 20 June 2005 when the Lotito allegations commenced.  Otherwise, the complaint would have been more extensive.  The delay is readily explained by her caution, as there was no procedure to do so.

126                      The response of Mr M Hickinbotham was unsatisfactory.  It was delayed.  There is no evidence that the complaint was recorded in any structured or formal way.  No written notice of the complaint was made to Ms Sharrad.  There is no written acknowledgment of the complaint.  Mr M Hickinbotham apparently investigated it by speaking to Ms Sharrad, Mr Daminato and Kylee Harry (who were said to have witnessed Ms Sharrad making the remark).  No record of the results of those inquiries was produced in evidence.  Each worked in head office.  There was no information given to Ms Poniatowska about that process until shortly before 9 August 2005.  She was asked to attend a meeting on that date.  Also in the overall picture, there was no action taken prior to that date to reassure Ms Poniatowska.  That may be why she did not directly report the Lotito allegations.  In effect, the response to that complaint was delayed, and was apparently addressed only in the context of the Lotito allegations.

127                      A meeting was held between the three of them and Mr Lotito on or about 9 August 2005 at which Ms Sharrad apologised.  That was followed by a letter from Mr M Hickinbotham of 9 August 2005.  It is in the following terms:

I refer to your recent complaint about your Team Leader, Roz Sharrad, making an inappropriate comment about you and to our recent meeting to discuss the matter.

I have investigated this matter and have interviewed Roz as well as Kylee Harry and Renato Daminato, whom you say were present when the comment was made.

Kylee and Ren have no recollection of the comment, however Roz did recall making a comment but is adamant that it was made in your best interests, as a caution but in a light-hearted way.

Roz does accept that her use of language may have been considered by you as inappropriate but she is adamant that it was in no way intended to cause you offence or discomfort.

It seems that there was a misunderstanding in that what Roz intended to communicate was not what you understood at the time.

I am pleased that you and Roz have discussed this matter in my presence and that you have accepted Roz’s explanation – that she in no way intended to cause you discomfort or offence – and her apology.

I note that in the many years Roz has worked with our organisation, I have never received a complaint of this nature about her.

The penultimate paragraph of the letter reflects the conversation at the meeting.

128                      Mr M Hickinbotham’s note of that meeting indicates that three things were discussed.  Firstly, Ms Poniatowska complained of Mr Lotito not respecting cross leads, that is not giving a building consultant credit for having identified a potential client so that, if that potential client pursued a building contract with Homes, that building consultant would be given the work and the commission rather than someone who later dealt with them.  His note indicates that Ms Sharrad was to adjudicate on that issue concerning four cross leads about which Ms Poniatowska complained.

129                      Secondly, it recorded that Ms Sharrad apologised for having made an offensive comment and had given the explanation that she was troubled by putting Mr Lotito together with Ms Poniatowska, and so wanted to caution him against any inappropriate behaviour and to give Ms Poniatowska some assurance.  She did not explain why she regarded that as a necessary step.  He said in evidence that Ms Poniatowska agreed to put behind her what she regarded as the offensive remark by Ms Sharrad.

130                      Thirdly, the meeting discussed the MMS photograph which, it is alleged, Mr Lotito sent to Ms Poniatowska to which I shall shortly advert.

131                      Mr M Hickinbotham said that he reprimanded Ms Sharrad not to use that language in the office as it may be offensive.  He told her that the language was inappropriate.  He did not give that reprimand in writing.  Nor did he send any memorandum, or give any instruction to the staff of Homes, addressing any element of those matters, either specifically in relation to what Ms Sharrad had said or (as may have been an appropriate option) generally in relation to the use of such language.  The lack of any such instruction also tends to confirm my impression of a robust work environment.

132                      He said that he was not conscious of the danger of sexual approaches by one building consultant to another at display centres, and that there was a misunderstanding by Ms Poniatowska as Ms Sharrad did not intend to advert to that.  It is hard to understand why.  Rhetorically, what else did she intend to refer to?  That sort of answer is an indication of the foundation for my view that Mr M Hickinbotham either did not realise, or did not appreciate the significance of, the robust working environment, and further that there was a significant element of reconstruction in his evidence about how he responded to events concerning Ms Poniatowska.

133                      It is unclear whether Mr M Hickinbotham would have acted upon Ms Poniatowska’s complaint concerning the June 2005 allegations (about Ms Sharrad) but for the Lotito allegations.  There is no satisfactory explanation for why the June 2005 allegations took so long to be addressed.  The Lotito allegations disclosed conduct which, if true, were also very significant.  Having come to the attention of Ms Sharrad, she did enliven an investigation process which had progressed to a degree by 9 August 2005, and required a prompt reaction.

134                      It is also noteworthy that, unlike the complaints concerning Ms Poniatowska’s work performance, the response of Mr M Hickinbotham did not involve any documented investigation, or any documented reprimand of Ms Sharrad.  That is true also of the May 2005 allegations (concerning Mr Flynn).  Indeed, as appears from my consideration of the Lotito allegations which next follows in these reasons, that matter too did not lead to any documented investigation or any formal reprimand or other disciplinary action against Mr Lotito.  I shall refer to the significance of that comparison later in these reasons.

THE LOTITO ALLEGATIONS

135                      The complaint to HREOC, and renewed on this application, specifically concerning Mr Lotito was that on 8 June 2005 at work Ms Poniatowska received on her mobile phone an MMS photograph from Mr Lotito showing an act of oral sex by a woman on a man, with the text message “U have 2 b better”.  For reasons appearing below, I find the MMS photograph was sent on 20 June 2005.  She then says that in the following weeks she received a number of phone calls from Mr Lotito asking her to have sex with him, including requests for oral sex.

136                      She did not formally report that matter to Mr M Hickinbotham at the time.  I accept that she did not do so partly because she was shocked and partly because there was no system by which she could do so.  In fact, her complaint to Ms Sharrad about the May 2005 allegations had been, in effect, brushed aside and her complaint to Mr M Hickinbotham by mid June 2005 about the June 2005 allegations had, so far as she was aware, not prompted any response (and did not do so until after the Lotito allegations came to the attention of Homes on about 7 August 2005).  The fact that she did not promptly report the matter does not indicate the communication was insignificant to her.  She showed the MMS photograph to a female colleague.  She did so some time after its receipt, and after also having received some phone calls from Mr Lotito asking her to have sex with him.  That colleague reported the matter to Ms Sharrad.

137                      The monthly roster form prepared by Ms Sharrad shows that in June 2005 Ms Poniatowska and Mr Lotito were rostered to work together at the Seaford Rise Display Village on seven successive working days, that is days in which it was open, being Sunday, 12 June 2005 and then 13, 15, 18, 19, 20 and 22 June 2005.  There is nothing to suggest that, thereafter, they were rostered to work together.

138                      The telephone records of Ms Poniatowska and Mr Lotito (using a mobile telephone number in the name of his wife) are quite clear.  Mr Lotito sent one MMS photograph to an unspecified number on 20 June 2005.  It was not to a group of numbers.  He also telephoned Ms Poniatowska’s number in the period from 27 May to 27 June 2005 on five separate occasions: 15 June, 22 June (twice), 24 June and 27 June 2005.  Ms Poniatowska’s phone records indicate that over that same period she telephoned his number from her mobile on one occasion, on 16 June 2005 at 9:02 am, for a call lasting 30 seconds.

139                      In my judgment, that information demonstrates that Mr Lotito’s evidence, and his pleading, on the issue of whether he sent that offensive MMS photograph to Ms Poniatowska is not correct.  He denied having done so.  He denied having had such a photograph on his mobile phone.  He fell back to the proposition of saying that, if it was there, he had sent it accidentally to her as part of a group message.  He fell back further to saying that, if he had sent it to her, he had sent it to her accidentally.  He said that he had been contacted by her on many occasions at that mobile number in that period of time.

140                      None of that is correct.

141                      There is only the one entry on the mobile telephone account to cover that period of time which could relate to the sending of an MMS photograph to Ms Poniatowska.  It is the entry of 20 June 2005.  I find that Ms Poniatowska is incorrect about the date of that communication, but otherwise described it accurately.  The fact that Mr Lotito sent that MMS photograph to her is confirmed by the following.  On the matter coming to Ms Sharrad’s attention, she arranged for that image to be sent by Ms Poniatowska to a computer in the head office of Homes, and then to be inspected.  The image included the source telephone number.  It accorded with the mobile number held by the records of Homes attributable to Mr Lotito.  He was confronted with that material at a meeting on 10 August 2005.  He then acknowledged to Mr M Hickinbotham that he did send “dirty photographs” on his mobile phone from time to time, although he did not accept having sent that particular photograph.  Mr Lotito, on the phone records in evidence, initiated a number of telephone calls to Ms Poniatowska after 20 June 2005.  She made only one telephone call to him, and not the “many” telephone calls he asserted.

142                      That conclusion is consistent with the impression I formed about Mr Lotito’s evidence on this topic.  I am uncertain whether he was deliberately lying, or whether he has come in a somewhat irresponsible way to believe that what he said is true.  What he said is inconsistent with the objective evidence.  It is also inconsistent with a defence filed on his behalf of 6 November 2007 in which he admits sending that MMS photograph to Ms Poniatowska.  He said in evidence that he did not instruct solicitors to make that admission, but I did not find that explanation satisfactory in the light of his demeanour at the time of that evidence.  He also admitted, in the course of his evidence, that he may have sent that MMS photograph to Ms Poniatowska, but if so it would have been by accidentally including her in a group message.  The billing demonstrates that that message was not sent in a message to a group.

143                      I got the distinct impression from the way Mr Lotito gave evidence that he was, to a degree, enjoying the forensic position of asserting that he had not done anything wrong because it could not be proved that he had done anything wrong, rather that his evidence reflecting a genuine belief on his part about the facts he was describing.

144                      Moreover, his evidence as to the two critical conversations which took place on 10 and 26 August 2005 about the incident are overwhelmingly contradicted by Ms Poniatowska, by Ms Sharrad and Mr M Hickinbotham (both of whom saw his telephone number as recorded on their internal system on the MMS photograph which was provided to them from Ms Poniatowska’s mobile telephone number).

145                      There was a meeting on 10 August 2005.  As noted above, Mr M Hickinbotham’s contemporaneous notes of that meeting indicate that the meeting addressed three topics: Ms Poniatowska complaining of Mr Lotito not respecting the cross leads to clients which she had procured, but taking those clients; Ms Poniatowska’s complaint about Ms Sharrad’s comment referred to above (the June 2005 allegations); and the sending of the MMS photograph to her mobile phone.  She complained at that meeting that Mr Lotito had been making inappropriate approaches to her both at work and by telephoning her at home, until some time in July 2005.  At that meeting, on 10 August 2005, Mr Lotito told Mr M Hickinbotham (I find contrary to Mr Lotito’s evidence) that he sent dirty photographs around the place and that he wished to take legal advice.  Mr Lotito denied that, but it is inconsistent with the handwritten notes taken by Mr M Hickinbotham at the time.  It is also inconsistent with the other evidence as to what transpired at that meeting.

146                      Mr Lotito also asserted that there was nothing said at that meeting of 10 August 2005 about the issue of cross leads.  That is also inconsistent with Mr M Hickinbotham’s contemporaneous note.

147                      The respondents (other than Mr Lotito) sought to attack Ms Poniatowska’s credit by reference to her evidence about the Lotito allegations because she first said the MMS photograph was sent on 8 June 2005, and because she did not tender in evidence her mobile phone.  I do not regard either of those matters as detrimental to her credit.  Indeed, whilst she was mistaken about the date, those respondents agreed that the offensive MMS photograph was sent by Mr Lotito and that the evidence pointed to it having been sent on 20 June 2005.  They adduced in evidence the image, as taken from Ms Poniatowska’s mobile phone to the computer records of the Hickinbotham Group.  Whilst that image did not record the date on which that image was first sent, the evidence is very strong as to that date being 20 June 2005.

148                      The respondents (other than Mr Lotito) also sought to attack the credit of Ms Poniatowska because she said that she did not complain promptly about the receipt of that offensive image because she did not know who to complain to.  She had already complained directly to Ms Sharrad about the May 2005 allegations and to Mr Hickinbotham about the June 2005 allegations.  In the context of the responses she had received to those complaints, in relation to the first a dismissive remark and in relation to the second a long delay without any information about whether the complaint was being treated seriously, I regard Ms Poniatowska’s reluctance to report the receipt of the MMS photograph promptly as understandable and I do not think her explanation for not having done so as unsatisfactory or as a basis for not accepting her evidence to the extent that I have done so.  She subsequently reported the August 2005 allegations, but that was after seeing the initial response to the Lotito allegations.  In that light, the reporting of the August 2005 allegations also is not a reason to doubt her general credibility.

149                      The fact of Ms Poniatowska having received the offensive MMS photograph, I find, soon became relatively common knowledge among the building consultants and within the head office of Homes.  Ms Poniatowska’s evidence about that is confirmed by the evidence of Ms Hopko and Mr Flynn as well as by Mr Lotito.  If Mr M Hickinbotham gave instructions for the incident to be kept confidential, the instruction did not achieve the result.  Mr Daminato said it was discussed by the management group.  Ms Sharrad did not recall such an instruction having been given by Mr M Hickinbotham and she agreed that she did not instruct the building consultant who reported it or the head office employee who took the image to computer from the mobile phone to treat the fact of the picture image confidential.  I consider Mr M Hickinbotham’s evidence on that issue to be the result of reconstruction; I do not accept that he gave such a direction.  That had consequences for Ms Poniatowska to which I shall refer later in these reasons.

150                      On the whole of the evidence, it is understandable that Ms Poniatowska felt that “everybody” knew about it and was embarrassed about it.

151                      I find that the Lotito allegations were first reported to Ms Sharrad about 6 or 7 August 2005.  She in turn reported it to Mr M Hickinbotham.  She arranged for the MMS photograph to be transferred to the head office computer system on 8 August 2005.

152                      Mr M Hickinbotham, who had returned from interstate about that time, arranged a meeting with Ms Poniatowska and Ms Sharrad on 9 August 2005.  I accept Mr M Hickinbotham’s evidence that he initiated the meeting.  That conversation concerned the three topics referred to above: the harassment from Mr Lotito, the taking of cross leads by Mr Lotito, and the June 2005 allegations concerning Ms Sharrad.  His evidence, as confirmed by his notes taken at the time, confirmed that the MMS photograph was sent from a mobile phone number which was that recorded as Mr Lotito’s contact number.  Mr M Hickinbotham said that the Lotito allegations would be investigated.

153                      In this instance, he then acted promptly.  He and Ms Sharrad had a meeting with Mr Lotito on 10 August 2005.  I have referred to that meeting above.  I accept that, during that meeting, Mr Lotito was subdued and contrite, although he denied having sent the offensive MMS photograph only to Ms Poniatowska, and also asserted that she had been harassing him with telephone calls, so that she called him more than he called her.  Mr M Hickinbotham said in his oral evidence that he asked to see Mr Lotito’s telephone records, to investigate the allegation of harassment.  I do not accept that he did so.  I think it is another example of unreliable reconstruction.  There is no reference to that request in his affidavit adopted as part of his evidence in chief, nor in his contemporaneous notes.  Although, in that affidavit, he says he spoke to Mr Lotito twice in the period between 10 and 23 August 2005, he does not say he asked for the telephone records or chased them up.  Those records were not received in August 2005 or before Mr Lotito resigned from his employment with ESA.  The two conversations between those dates were said to amount to Mr Lotito saying he was sorry for inadvertently sending the MMS photograph to Ms Poniatowska and was concerned that his marriage was threatened by him having done so.

154                      Ms Poniatowska was not told anything about the progress of the “investigation”.  There is no evidence of any actual investigation being undertaken.  Ms Poniatowska was not notified of Mr Lotito’s allegations against her.  She was not given the opportunity of presenting her telephone records.  She was not given the opportunity of commenting upon the claim that Mr Lotito sent her the MMS photograph by mistake.  In fact, he was present when she received it and he commented to her along the lines of seeing that she had got his message.  Subject to her reliability, that would put the lie to the claim of mistake.

155                      A few days before her letter of 19 August 2005, she asked Ms Sharrad what was being done about the Lotito allegations.  Ms Sharrad told her two things.  First, she said the investigation was continuing.  As I have noted, in fact little or nothing was being done.  Secondly, she told Ms Poniatowska that she (Ms Sharrad) was worried about Mr Lotito and the effect the incident might have upon his marriage.  That was a surprising observation, as Ms Poniatowska had been the victim of the only clearly established conduct.

156                      Following that communication, prompted by Ms Poniatowska and not by either Mr M Hickinbotham or Ms Sharrad, Ms Poniatowska sent the letter of 19 August 2005.  It said:

I refer to our meeting on 9 of August 2005 in regards to the [MMS photograph].

I would like to inform you, that I would like to put this matter to rest.  As I feel my affords (sic) are far better served towards selling homes for the Hickinbotham Group.

Furthermore for your information, I had no intention of bringing the matter to anyone attention (somebody else reported it without my either authorisation or knowledge), as I found it trivial and not in accordance with company matters.

157                      I accept Ms Poniatowska’s evidence that she did so to get her employment relationships back on an even keel, in the face of the ongoing sensitivity she felt from the awareness of others about the Lotito allegations, and her perception of a lack of sensitivity to her position from Homes.  I also accept that the letter did not accurately reflect her view that the communication was in fact trivial.  Her evidence when describing why she sent that letter in those terms appeared sincere and deeply felt.  She wanted to put the incident behind her, with its attendant (perceived) strange looks and whisperings from others and to get on with her job.

158                      I find that that letter too went unremarked by Mr M Hickinbotham, until Ms Poniatowska raised it with Mr M Hickinbotham.  Mr M Hickinbotham’s notes of that meeting are short.  I think they reflect a desire on his part to close the issue, rather than a comprehensive record of the conversation.  The note first reads: “Accepted Remo’s apology”.  In fact, Ms Poniatowska had not received an apology from Mr Lotito.  I accept her evidence that Mr M Hickinbotham asked her if she would accept an apology, and that she said she would.  In my judgment the second entry: “Accepted that it was a harmless joke – though totally inappropriate” reveals how Mr M Hickinbotham put the matter to Ms Poniatowska rather than her description of it; that was not her view and she would not have said that unprompted.  The third and final entry on the note: “Said while initially shocked this is how she has taken it + has not affected her sales or personally” also, in my view, reflects Mr M Hickinbotham’s position which he put to Ms Poniatowska, and to which she may have inadequately responded, rather than anything volunteered by her.  She did not say that directly.  I accept that was not how she felt, or how she thought the Lotito allegations, and their sequelae, had affected her.

159                      What I have found, in effect, to have been a mindset of Mr M Hickinbotham about closing the issue is reflected in what next followed.  It also indicates that Mr M Hickinbotham, notwithstanding the letter of 19 August 2005, realised that Ms Poniatowska may have had ongoing concerns about the Lotito allegations.

160                      On 26 August 2005, Ms Sharrad arranged a meeting between herself, Ms Poniatowska and Mr Lotito.  Ms Harry was also present.  The purpose of the meeting was for Mr Lotito to apologise to Ms Poniatowska.  It emerged in the oral evidence of Ms Sharrad that, prior to that meeting and on Mr M Hickinbotham’s instruction, she should put a series of questions to Ms Poniatowska (prepared in advance by Mr M Hickinbotham) and record her answers.  That is how the meeting commenced, in effect by an interrogation primarily of Ms Poniatowska.  The questions were to elicit her confirmation that the incident had not affected her work performance or her sales or personally.  Ms Sharrad was to abandon the meeting if appropriate answers from the point of view of the Hickinbotham Group were not given.  The list of questions, and the answers recorded, were emailed to Mr M Hickinbotham.  Neither document was produced by Homes in evidence.  Ms Harry was present to witness the answers.

161                      After Ms Poniatowska had given answers to those questions, which Ms Sharrad regarded as appropriate, Mr Lotito was asked to proffer an apology.  He did so.  After he had done so, he was treated warmly and sympathetically by Ms Sharrad.  Ms Poniatowska was not treated in the same way.  Mr Lotito was also privately orally warned in a gentle way to keep his head down as his conduct was serious.

162                      It is clear that, despite the initial response of Ms Sharrad and Mr M Hickinbotham when first informed about the MMS photograph sent by Mr Lotito to Ms Poniatowska, no formal record of that incident was made.  Ms Sharrad after the meetings of 9 and 10 August 2005 took no steps to investigate it.  Nor, I find, did Mr M Hickinbotham.  No real steps were taken to keep the events confidential.  It was frustration at that inactivity and Ms Poniatowska’s personal embarrassment which led to her writing the letter of 19 August 2005.  In that period to 19 August 2005, no support was offered to Ms Poniatowska.  At no time was any notice given to the staff about the inappropriateness of such behaviour, either specifically relating to the Lotito allegations or more generally regarding harassment in the workplace.

163                      No formal warning was given to Mr Lotito.  No formal record of any inappropriate conduct on his behalf was, on the evidence, made.  I infer that any such record would have been produced.  Mr M Hickinbotham said he accepted that the MMS photograph had been sent inadvertently, and may have been part of a group message.  He thus acted on Mr Lotito’s version of events, without ultimately investigating them.

164                      The way the Lotito allegations were dealt with, and including the way Mr Lotito himself was dealt with as a result of his conduct, contrasts with the way Ms Poniatowska was dealt with in the events leading up to her suspension and termination.  The contrast is dramatic.  Moreover, I consider that the way Mr Lotito’s conduct was addressed once it came to the attention of Mr M Hickinbotham and the way Ms Poniatowska was treated in that process indicates an attitude to her on the part of the Hickinbotham Group which has some relevance to my later findings about the reasons for her termination.  She was clearly the victim of Mr Lotito’s inappropriate conduct, but the way she was treated suggests that she was not regarded as the victim but as a problem presenter to be managed.

THE AUGUST 2005 ALLEGATIONS

165                      Ms Poniatowska alleges that on 29 August 2005, Ms Sharrad spoke to her about developing a sexual relationship with the development manager of another land and building development company, so that Homes would be better placed to secure a land deal with that company.  She said that conversation occurred after Ms Sharrad had attended an industry function and it emerged in the course of conversation between Ms Sharrad and that man that he knew Ms Poniatowska as a family friend.  Ms Poniatowska also says that she orally reported the conversation to Mr M Hickinbotham but no action was taken on that report.

166                      Ms Sharrad agrees that she knew that man through industry functions, and that she spoke to him at a particular function when it emerged that Ms Poniatowska was a good family friend. She spoke to Ms Poniatowska about that.  She denies having then suggested that Ms Poniatowska develop a sexual relationship with him in the interests of Homes.

167                      It is undisputed that, following the function, a conversation about the man took place between Ms Poniatowska and Ms Sharrad.  However, I accept Ms Sharrad’s evidence that she did not say what Ms Poniatowska attributed to her.  It is inherently improbable.  What she said has, I find, been misunderstood by Ms Poniatowska.  Ms Sharrad liked that man, and agrees that she commented about him favourably to Ms Poniatowska.  She said that she would have been happy for Ms Poniatowska if she “was in a relationship” with him.  In view of my impression about the style of communication in the head office, I think her expression of that opinion was likely to have been more robust.  Whether she made any other comment along the lines of him being a good “catch” for Ms Poniatowska, I consider that any understanding by Ms Poniatowska that she should form a relationship with him for the benefit of Homes arises from erroneously reading into, or misunderstanding, what Ms Sharrad said.  I am also not persuaded that she reported any such conversation to Mr M Hickinbotham at about that time.

168                      I have taken the findings just referred to into account in assessing the credit of Ms Poniatowska and Ms Sharrad.  In the case of Ms Sharrad, I have earlier referred generally to my assessment of her credibility.  In the case of Ms Poniatowska, the findings are a little more concerning.  That is not so much because I have rejected her version of part of the conversation.  Misunderstanding could understandably arise, especially with a robustly expressed conversation and with comments (probably jocular) about the two businesses.  The fact that Ms Poniatowska did not refer to that alleged conduct until about March 2006 in her unfair dismissal proceedings, or to certain of the doctors as part of the relevant history, provides no reason to doubt that she is reliably reporting her version of the conversation at all.  After careful consideration, I do not think that she is fabricating the incident.  I accept that she described what she considers to have occurred, even though she is mistaken.  The incident occurred around the same time as the Lotito allegations or their aftermath; the evidence shows that the Lotito allegations were a much more significant incident to her.  She had decided to put behind her that and earlier experiences.  Her failure to take her understanding of the conversation further at the time, and to make little of it as part of the overall history of events, is in my view understandable.  Consequently, her having misunderstood what Ms Sharrad said to her on this aspect of her allegations does not cause me to doubt her overall reliability as a witness. 

THE SEPTEMBER 2005 ALLEGATIONS

169                      Consideration of this incident has caused me concern, not simply in relation to the particular allegations, but because of the implications for the general assessment I have made about the credibility of Ms Poniatowska and Mr M Hickinbotham.  Ultimately, I make the findings referred to below.  I have also taken them into account in making my general credibility assessments.

170                      On 30 September 2005, there was a social function for the employees of the Hickinbotham Group held at a hotel.  Ms Poniatowska says that, after the meal, she was dancing on the dance floor, and that Mr M Hickinbotham, who was apparently dancing with someone else, spontaneously and without warning kissed her strongly on the lips.  He did not say anything to her at the time, and then simply moved off.  She was shocked by what had occurred, but did not otherwise react at the time.  Nor did she complain after that incident to anyone about it.  Understandably, if it occurred, she correctly asked who she could complain to.

171                      She accepts that she first raised the matter in her unfair dismissal claim in March 2006.

172                      Mr M Hickinbotham simply says that the incident did not happen.

173                      There is some subsequent related conduct alleged.  On 9 June 2006, after a conciliation meeting in relation to the unfair dismissal claim had been unsuccessful, Ms Poniatowska telephoned Mr M Hickinbotham.  It is common ground, at least, that she asked about why commission payments for sales she had made during her employment, and which were due on 30 May 2006, were being withheld.  Mr M Hickinbotham said that he would follow that up with Mr Wright, the person responsible for those payments.  I interpose to note that Mr Wright did follow that matter up, and the issue of outstanding commission payments was resolved.  There were apparently some contracts secured by Ms Poniatowska which, after her employment was terminated, fell through for various reasons so that she was no longer entitled to the commission.

174                      It is also common ground that the September 2005 allegations were discussed in that telephone conversation.  Ms Poniatowska says that during the conversation, apparently unprompted, Mr M Hickinbotham said words to the effect that he agreed with Mr A Hickinbotham that she had been treated badly in her employment, and she asked him to do something to rectify the situation.  He did not respond.  There is no context in which reference to Mr A Hickinbotham’s views might have arisen, as suggested by Ms Poniatowska.  Mr M Hickinbotham has a different slant on that part of the conversation.  He made a note of it immediately following the meeting.  His record, and his evidence, is that Ms Poniatowska said that she thought he may have changed his view about how she had been treated and may wish to apologise to her.  He said that she should apologise to the Hickinbotham Group “for fabricating her claim” and for “lying in her statement of claim”.  He said that Ms Poniatowska then started to discuss Ms Sharrad and the warning letters and invited him to agree that Ms Sharrad had victimised her.  He said that he stood by Ms Sharrad, and had nothing further to say on the matter.  He said that Ms Poniatowska then apologised for lying about him kissing her, and said she only did it to get back at the company and Ms Sharrad because she thought Ms Sharrad had treated her badly.

175                      I have carefully considered the relevant evidence, and the way in which each of those persons gave evidence across a range of topics.  I am not satisfied that the incident the subject of the September 2005 allegations occurred.  In the particular circumstances, it is inherently unlikely that Mr M Hickinbotham, having learned of the complaints made by Ms Poniatowska about Ms Sharrad’s conduct (the June 2005 allegations) and about Mr Lotito’s conduct (the Lotito allegations), and having had to consider what should have been done about them in the period leading up to the end of August 2005, would himself have engaged in such conduct.  I accept his evidence that he did not do so.

176                      Having reached that conclusion, I have carefully considered its consequences in relation to Ms Poniatowska’s general reliability as a witness.  I do not attribute her evidence to deliberate fabrication.  As she herself said, even following the May 2005 allegations, she was somewhat sensitive to sexual harassment or sex discrimination in the workplace, and for that reason was reluctant to work alone with Mr Lotito.  Her complaints about workplace conduct were not well handled.  I infer that, on the dance floor on 30 September 2005 there was some incidental contact between herself and Mr M Hickinbotham which, in her own mind, she came to perceive as something which it was not.  I have also taken into account that, although she said that the incident was witnessed by a number of other persons, she did not call any witness to support her version of that incident or indeed to identify any of those persons who may have seen that incident.

177                      On the other hand, in my view, she did not acknowledge in the telephone conversation with Mr M Hickinbotham of 9 June 2006 that she had lied about him kissing her and did not say that she had made that story up to get back at the Hickinbotham Group, or Ms Sharrad.  It is common ground that the issue arose as to who was at fault in relation to the events of which Ms Poniatowska complained, at that point culminating in her proceedings.  She may well have said that she regarded Ms Sharrad as having victimised her.  I think that is what she thought at the time, and indeed has believed since about August 2005, including in relation to her termination.  She may have asked for an apology, and Mr M Hickinbotham in response may have asked for an apology.  As I have indicated, I think Mr M Hickinbotham took a fairly firm and uncompromising and unsympathetic position in relation to Ms Poniatowska’s complaints at a fairly early stage and maintained that position.  It is, however, inherently unlikely that, in the course of such an exchange, Ms Poniatowska would have volunteered that she had fabricated the September 2005 allegations.  She is an intelligent person, who at that time, and subsequently, believed that she had been unfairly treated in her employment and was seeking relief for it.  There was no natural flow of the conversation, on either version, that would have led to her making such an acknowledgment and apology.  There was no other reason why she would have done so.  On either version of the conversation, it had reached a stalemate of disagreement.  I consider that, notwithstanding Mr M Hickinbotham’s written and relatively contemporaneous notes, he read into the conversation more than Ms Poniatowska said.  I have found above that some other notes he made of conversations did not reliably represent the tenor of the conversation.  On both their evidence, the conversation was quite a testy one, and Mr M Hickinbotham said that Ms Poniatowska appeared upset in the course of it.  It would not have been an easy conversation.  Whilst I do not think that he deliberately fabricated his understanding of that part of the conversation, I do not accept that he accurately heard what she said.

RECAPITULATION

178                      It is now necessary to consider competing evidence about the circumstances leading up to the suspension and termination of Ms Poniatowska’s employment, and the reasons giving rise to those circumstances.

179                      They commence with the first warning letter.

180                      It is helpful very briefly to note the findings made adversely to the respondents to the time of the first warning letter.  It is in the context of those findings that the next section of these reasons for judgment are better understood.

181                      I have found that:

(1)        the May 2005 allegations occurred;

(2)        the June 2005 allegations occurred;

(3)        the Lotito allegations occurred;

(4)        the handling of Ms Poniatowska’s reports to Homes of those three matters was not adequate; and

(5)        the general file preparation and presentation of Ms Poniatowska’s files was by no means perfect, but was on the other hand not distinctly less satisfactory than at least that of some other new building consultants.

I have not accepted that:

(6)        the April 2005 allegations occurred;

(7)        the August 2005 allegations occurred; or

(8)        the September 2005 allegations occurred.

182                      In the period of her employment up to the first warning letter of 18 November 2005, Ms Poniatowska continued to work as a building consultant.  She did so with moderate success.  Between May and November 2005, she procured 22 building contracts.  That was significantly less than the number procured by a more experienced building consultant, but comparable to, if not a little more favourable than, the building contracts secured by other new building consultants or some of them.

183                      It is difficult to determine from the evidence when those building contracts were negotiated.  It is common ground that there is often quite some time before a “lead” becomes a client of Homes, and some time between the submission of a proposed contract to Mr Daminato and its approval.  Consequently, I do not think those numbers are helpful indicators of the progressive effectiveness of Ms Poniatowska’s work in the latter half of 2005.  There is some evidence which suggests she secured a significant number of contracts in October and November 2005.

184                      Ms Poniatowska also alleges that from about late September 2005 she was treated less favourably than other building consultants.  That, she claims, is part of the evidence leading to the conclusion that the termination of her employment was not for the stated cause or causes, but because she was being discriminated against for having made the several allegations referred to above.

185                      As I find that her employment was not terminated for the stated reasons, and that her termination was related to the three incidents – the May 2005 allegations, the June 2005 allegations and the Lotito allegations – I do not need to make findings about whether Ms Poniatowska was treated differently from other building consultants in the allocation or retention of work in the way she claimed.  It is sufficient to observe that, whether or not that was the case, in the circumstances her belief about those matters was not unreasonable, so her evidence about them did not cause me to reach a different view about her overall credibility from the conclusion that I have referred to above.

THE FIRST WARNING LETTER

186                      The first warning letter was dated 18 November 2005.  It was under the hand of Mr Daminato.  He said he had initiated it, unprompted by either Ms Sharrad or Mr M Hickinbotham.  Ms Sharrad’s evidence on that topic was, in my view, evasive and apparently inconsistent.  Mr M Hickinbotham said he had instructed Mr Daminato to prepare it, and to include everything he could in the letter.

187                      I find that the first warning letter was prepared by Mr Daminato on the instruction of Mr M Hickinbotham.  Mr M Hickinbotham said that it followed a meeting in late October 2005 between himself, Ms Sharrad and Mr Daminato to review Ms Poniatowska’s files.  No particular incident was identified as prompting it.  No record of the meeting was apparently maintained, or put into Ms Poniatowska’s personnel file.  The instruction from Mr M Hickinbotham must be seen in the context of my findings about the relative file preparation and presentation of Ms Poniatowska compared to that of other new building consultants.

188                      The first warning letter was in the following terms:

Warning

I take this opportunity to remind you of the following point from the company’s Code of Conduct, which reads as follows:

22.       Ensure files and contracts are properly prepared with all requisite information and documentation duly completed, as per the checklist in the inside cover of the file, company policy and any directive from the General Manager or Building Manager.

In particular, I note that I have had cause to return files (their job numbers and dates of return are listed for your reference) to you for the following reasons:

·           undercosted [details omitted];

·           missing documentation [details omitted];

·           incomplete documentation [details omitted];

·           incorrect documentation [details omitted]; and

·           failure to attend to items requiring clarification in the first instance, resulting in the file being returned to you more than once [details omitted].

As you are aware, I have explained the specific instances where your performance has been inadequate to you in detail.

Accordingly, please regard this letter as a formal warning for unsatisfactory performance.  Any further instances may result in the company terminating your contract of employment.

 

The details against each item listed a job number and date.  The warning letter related only to Ms Poniatowska’s file preparation and management.

189                      In his evidence, Mr Daminato said that amendments to standard plans made by Ms Poniatowska “were often impossible to understand” and were hard to read because of a lack of precise lines.  Such matters, he was concerned, could lead to disputes with clients.  He also said that the quotation forms with itemised costings contained errors leading to under-quoting on some files.

190                      I formed the view that Mr Daminato’s evidence about Ms Poniatowska’s file presentation was overstated.  That may have been a subconscious result of him being a member of the head office staff, and so desirous of supporting his employer.  He did not explain to my satisfaction why Ms Poniatowska’s file management was so different from that of other new building consultants.  That was not the impression I got from Mr Swan’s evidence, although of course Mr Swan was not so directly involved in the process.  However, Mr Swan’s exposure to building consultants generally was likely to have revealed a building consultant who stood out for incompetence in file preparation.

191                      The “team” approach is illustrated by Mr Daminato’s assertion that ESA had a policy for the preparation and completion of files, referred to in the letter of offer of employment and reflected in the Code of Conduct.  The Letter of Appointment is apparently a standard one.  In Ms Poniatowska’s case it is dated 24 January 2005.  It refers to a “standard job specification”, but that document was not put forward by Mr Daminato.  It also has a heading “Company Code of Conduct” under which is the following:

You will be required to observe the general rules applicable to all staff.  In addition, you should become familiar with and observe the relevant requirements laid down in the company’s procedure manual.

192                      On the evidence, the “Code of Conduct for Building Consultants” is not a document routinely referred to.  Nor is it, in all respects, routinely complied with.  For instance, Rule 1 requires the wearing of company attire at all times.  The evidence is that that is not the case.  Rules 17 and 22 provide:

17.       *Be very careful with your quotes – each quote constitutes an offer from the company.  No individual item or overall quote is to be under-costed without written approval from the General Manager or the Building Manager.

…

22.       Ensure files and contracts are properly prepared with all requisite information and documentation duly completed, as per the checklist in the inside cover of the file, company policy and any directive from the General Manager or Building Manager.

[original emphasis].

193                      The Code of Conduct says any breach of an asterisked item is “Serious Misconduct”, and any three breaches of a non-asterisked item within any six month period is also “Serious Misconduct”.  Under the Letter of Appointment, serious misconduct may lead to instant dismissal.  On the evidence, arguably every or nearly every new building consultant would be vulnerable to instant dismissal because there were requisitions on virtually every file presented, apparently in breach of Rule 22.  The firm picture on the overall evidence is that the Code of Conduct was a background document, not routinely referred to by any of the head office staff or by building consultants in their daily activities.  Mr Daminato’s reference to it suggests a need to justify his actions when the practice of the Hickinbotham Group was not to much make use of it.

194                      More importantly, the Letter of Appointment provides for a six month probation or trial period, during which the employment of a building consultant may be terminated without cause or notice.  In Ms Poniatowska’s case, that period expired on 30 July 2005.  Despite Mr Daminato’s concerns, ESA did not take up that opportunity.  There is no cogent evidence to show why, if her file preparation was as bad as Mr Daminato suggested, that opportunity was not availed of.  Of the 18 files referred to in the details, eight of them related to a period before the expiration of the probation period.

195                      On some of the specified files, there were requisitions which fell into several of the categories itemised by Mr Daminato.  In the case of the “incomplete documentation” files, 11 were specified but eight related to times prior to the expiration of the probation period; in other categories, there were more specified incidents after the expiration of the probation period than before it.

196                      Nor was there any cogent evidence to indicate that her file preparation performance deteriorated after July 2005 compared to the period up to that time.  There was no attempt to make such a comparison on the part of Homes.  As I noted above, only in some, but not all instances, the incidence of requisitions of a particular nature was greater after the expiration of the probation period.  Moreover, the evidence shows, for instance from Ms Poniatowska as well as Mr Swan, that she continued to seek advice from time to time on issues of significance with a view to improving her performance.  Despite the assertion of Mr Daminato to the contrary, I do not accept that his consultations with her up to the time of the first warning letter were other than advisory and exhortatory in an appropriate way.  In particular, I do not consider that they conveyed to her that her performance in relation to file preparation and presentation was out of kilter with that of other building consultants, or was inadequate in a way which was of significant concern to Homes.  Those consultations took place in a routine way, and in substance because it was Mr Daminato’s job to identify such issues on a contract by contract basis and to address them.  It is also significant that he rarely identified, according to his affidavit, concerns about inaccurate or incomplete specifications and drawings, exposing Homes to potential client disputes, and/or concerns about under-quoting, exposing Homes to potential loss.  They are not insignificant matters.  If they were and remained of concern up to July 2005, they would have provided a sound reason why Mr Daminato by that time would have recommended to Mr M Hickinbotham that her employment be terminated.

197                      I have also noted above that there is an absence of any cogent comparison of the file preparation and presentation of other building consultants, particularly new building consultants covering the same period, but there is evidence, such as that concerning Ms Hopko’s files that she too continued to receive requisition notices during all of 2005 in respect of a number of files presented by her.

198                      Mr Daminato’s process, upon reviewing a file presented by a building consultant, was to prepare a handwritten note setting out the requisitions.  That was then provided to the building consultant to make the necessary changes and to re-submit the file.  The handwritten notes were then summarised and stored in a computer record.  That is the record from which Mr Daminato prepared the first warning letter.  As he described it, he simply sought to categorise the various requisitions on her files into different headings.  He made no allowance for the amount of training which she had received initially.  Although the first warning letter referred to recurrent problems, he made no careful analysis of those issues or their relative significance.  They were all simply blocked together.  His affidavit recognises that he identified “the same mistakes on new [f]iles” but that did not cause him to terminate or recommend the termination of Ms Poniatowska’s employment during the probation period.  He did not satisfactorily explain why that was so.  Nor did he suggest that other building consultants did not make “the same mistakes”.

199                      The nature of “the same mistakes” is an amorphous expression.  It is amorphous for at least two reasons.  First, as he ultimately acknowledged, there was during 2005 a delay between the lodging of a file for approval and him attending to it of some weeks.  It was not uncommon for building consultants, and not just Ms Poniatowska, to lodge files for approval knowing that they were incomplete and awaiting further information from a client, with the intent that the information when received would be included in the file.  Sometimes it was received before Mr Daminato came to consider the file and sometimes it was not.  I have noted that matter above.  Mr Daminato made no allowance for that.  Secondly, by way of example, if a drawing showing the building elevation on the different site, upon his analysis, appeared incorrect, it would not follow that to have an incorrect drawing of a building elevation on a different site with a different topography would support the conclusion that the building consultant was making the same mistake.  That may be significant because of the extent of training, or lack of it, provided generally to building consultants, depending upon the availability of their immediate instructor.  As I noted above, it was common ground that Ms Poniatowska’s instructor (after the first building consultant proved unsuitable) was intended to be Ms Sharrad, but she was rarely available to give such instruction.  The building consultant with whom she was allocated to work at an early stage did not give evidence, and there is no challenge to her evidence that her instructions from that building consultant may have been less than that of other new building consultants.

200                      Mr Daminato did not identify any particular transaction which prompted the first warning letter.  He did not identify a particular failing on the part of Ms Poniatowska which brought matters to a head.  Nor did Mr M Hickinbotham, whose instruction prompted the first warning letter.

201                      I also consider it significant as to the way the first warning letter was prepared.  A printout of the requisition records on Ms Poniatowska’s files was obtained, and Mr Daminato worked through them to put them into the categories set out in the letter.  There was no attempt to assess the significance of any of the requisitions, or to see whether within the categories there were particular requisitions which were understandable.  There are general findings about Ms Poniatowska’s file preparation and presentation, and its quality, compared to that of other new building consultants in the section of these reasons dealing with work systems and training above which have contributed to my finding.

202                      Mr Daminato was also taken through a few of the printed requisition slips relating to “incorrect documentation” referred to in the first warning letter.  They included photocopying mistakes, a building agreement photocopied out of sequence, and initials being used to identify modifications instead of clear wording.  When asked to comment upon the suggestion that they did not disclose the same sort of errors, Mr Daminato chose to point to one repeated error of not completing the schedule of PC costs.  He did not otherwise disagree.  Some of those requisitions, whilst no doubt important in the sense of them having to be corrected, appeared relatively insignificant in the sense of demonstrating incompetence or an unwillingness to learn on the part of a building consultant.  That reflects my impression that the listing of the requisition defects in the first warning letter was not carefully considered.

203                      For the reasons I have given, I do not accept the evidence that there was a progressive accumulation of matters which reached a sufficient climax as to prompt the first warning letter.

204                      I note also that, in the suspension letter of 9 February 2006 and in the termination letter of 23 February 2006, both of which are set out below, there is further reference to Ms Poniatowska’s file preparation and presentation.  Reference is made to four other jobs where “further serious errors” were made.  Those letters were written by Mr M Hickinbotham.  He based that part of the letters on a discussion with Mr Daminato.  Mr Daminato’s evidence is that he was asked if the problem with Ms Poniatowska’s files was continuing and that, after checking her files, he told Mr M Hickinbotham in general terms that there were four files with other examples of the same or similar deficiencies.  Mr Daminato had not earlier brought that to the attention of Mr M Hickinbotham.  Apparently, he had not felt the need to do so.  I find that Mr M Hickinbotham solicited that information not out of any awareness of such ongoing problems reported to him, but whilst he was drafting the suspension letter.  In my view, it is significant that that part of the suspension letter did not result from any specific concerns passed on to Mr M Hickinbotham or Ms Sharrad by him, unprompted.  I note also that in the termination letter of 23 February 2006 (set out below), where it refers to ongoing particular deficiencies identified in other files submitted by Ms Poniatowska, Mr Daminato during his cross-examination acknowledged that he had made that reference at the request of Mr M Hickinbotham to indicate whether there were ongoing deficiencies in files submitted by Ms Poniatowska, and that he looked briefly at the printout of requisitions to provide that information to Mr M Hickinbotham for insertion into that letter, without analysing in any detail the significance of the requisitions or forming a view as to whether they were different from those of other building consultants.  The evidence does not support the view that, after a period of time, all building consultants submitted files which, upon vetting by Mr Daminato, had no or barely any requisitions.  The contrary was the case.  If it was expected of building consultants that, after a time, there would be no or barely any requisitions, on the evidence, none of them would have satisfied that expectation.  If it was not expected of building consultants, the evidence overall does not support the claim of Mr Daminato that Ms Poniatowska’s file presentation and preparation was so unique as to warrant the first warning letter or her termination.

205                      The conduct of the meeting when the first warning letter was given was, in my view, intimidating.  There was, on the evidence, no preliminary conversation.  Ms Poniatowska was given the first warning letter and an opportunity to read it.  The printout of her requisition slips was available to Mr Daminato.  He spoke about them, by reading parts of them.  The seriousness of the deficiencies leading to the need for them was emphasised.  Ms Poniatowska had no time to consider a response.  She did not have an opportunity to consider the printout of requisition slips at the meeting.  The files to which they related were not at the meeting.  The requisition slips printout contained only job numbers and dates to identify them.  Ms Poniatowska was then given a formal warning at the meeting that if her file preparation and presentation did not improve, her employment may be terminated.  That formal warning was given before she had had any real opportunity to respond to the first warning letter.

206                      It is an obvious comment that she was treated differently from Mr Flynn, Ms Sharrad and Mr Lotito in relation to the May 2005 allegations, the June 2005 allegations and the Lotito allegations respectively.  None of them received formal warning letters, much less formal warning letters assuming guilt before they had the opportunity to respond to the complaint about their respective conduct.

207                      I add that the evidence of Mr Hickinbotham, Ms Sharrad and Mr Daminato about the meeting differed, albeit on matters of detail: whether the letter was read verbatim, summarised, or handed over to be read; the extent to which Mr Daminato interrupted that process (whatever it was) to point out features of the printout of requisition slips; and the extent to which Mr M Hickinbotham spoke about the detailed content of the letter and the printout.  Of itself, that observation is not of much significance.  However, I think that it is a small part of the larger picture I have found to exist: that the first warning letter was a step in the process of terminating Ms Poniatowska’s employment ostensibly for her work performance but actually for other reasons.  Such differences in their evidence, in the overall context, suggest to me that it was the apparent process which was important to them, rather than the substantive issues apparently being addressed.  As I have said, that is but a very minor part of the overall picture.

208                      Understandably, Ms Poniatowska was taken aback by the first warning letter and that meeting.

209                      She responded by email to Mr M Hickinbotham on 12 December 2005.  It expressed shock and disappointment at receipt of the first warning letter.  It said that the requisition notes on her files were (as was the case) normal feedback, and that she had no inkling that her file preparation and presentation was not of a normal standard.  It complained that there should have been some clear indication that her work was not up to an acceptable standard before being officially warned.  Ms Poniatowska asked that the first warning letter be withdrawn, and that the meeting on 21 November 2005 be regarded as “an opportunity to communicate the problem in a first instance”.  She asked for an urgent reply “as I need your support in this matter”.

210                      My findings about her file preparation and presentation happen to fit the assertions made in that email.  I also accept her evidence that what she said in that email reflected her views at the time.  To that time, she had no complaints from any client about her dealings with any of them.  She said, and was not directly contradicted by Ms Sharrad, that Ms Sharrad’s communications with her to that time did not informally convey that her file preparation and presentation was of an unsatisfactory standard so that, if it did not improve, some action might need to be taken.  Mr Daminato’s affidavit also, where it dealt with his discussions with her, did not suggest that.  He did assert that only in his oral evidence, but that version of his evidence was not put to Ms Poniatowska in her cross-examination, and I do not accept it.

211                      Mr M Hickinbotham responded to that email by letter of 13 December 2005.  It is necessary to set it out, as it requires the reiteration of findings I have made to put it into context for the purposes of these reasons.  The letter reads:

I refer to your email of yesterday.  Taking the issues raised in your email in turn, I make the following points:

1.         It is incorrect to say that you were “not aware of this situation”.  Our warning letter of 18 November, 2005 (“warning letter”) details the specific problems with Renato Daminato, the Contracts Manager, had raised with you about your files.  These problems were communicated to you in writing and on numerous occasions verbally by Renato and your Team Leader, Roz Sharrad.

I note that you acknowledged at our meeting to discuss your warning letter that you had received this information about your deficient files and that you apologised for their presentation.

I also note that the seriousness of this matter was raised with you on a number of occasions by your Team Leader, Roz Sharrad, by Renato and by myself, so it is completely wrong to say you believed it was “normal feedback” and “support”.  In fact, every time you presented a contract Renato was obliged to spend undue time in correcting your work.

2.         You received the same level of training every other Building Consultant receives in accordance with our training system.

As was explained to you, your files do not meet the company standard and overall are far worse than all of our other Building Consultants, all of whom have received the same training as you, with many having received less.

3.         I do not understand how you could possibly have believed I was happy with your work after I had gone out of my way to explain to you on numerous occasions that your files are deficient and will need to improve substantially.  I also note that Renato and Roz have had cause to have similar conversations with you on a number of occasions.

4.         It defies credibility that after all of these conversations and detailed notes setting out the specific reasons why your files are deficient, you believed I was happy with your performance and “good results”.

5.         Your inference that you have not received “constructive criticism” or “clear communication” is not accepted.  I refer you to your warning letter and the specific details of the deficient files you have presented and the numerous times Renato and Roz have discussed these problems with you.

6.         I do not accept that that (sic) company has acted unfairly.  On the contrary, we have gone out of our way to provide you with every opportunity to meet the requisite standard.

7.         You represented to me when you joined the company that you have a law degree from a university in Poland and a Masters of Business Administration degree from the University of South Australia.  Other Building Consultants with lesser credentials and many without any tertiary qualifications at all have no problem meeting the company’s standards.

I find it difficult to understand why you, with such a high level of education, have trouble preparing a simple quote (with a number being undercosted) or submitting a complete set of building agreement documentation.  Would you please provide me with a copy of your degree diplomas and your academic transcripts before the close of business on Friday, 16 December.

8.         We will not be retracting your warning letter.

9.         Your understanding of this matter is totally inaccurate.  The company has gone out of its way to make the standards it requires from you and its position in this matter totally clear.  We have also given you the benefit of the doubt on many occasions and provide you with every opportunity to improve your performance.  It has been entirely up to you.  I must say that after our meeting to discuss your warning letter and other discussions Roz, Renato and I have had with you, it has been a concern that it appeared you were relatively indifferent to the feedback you received.

In closing, I would like to stress, as I did in the meeting we had to discuss your warning letter, that we are very particular about the way the company is represented by its sales team.

We work hard to provide excellent service to our clientele and to offer a product that is well built and very competitively priced.

We can not allow a Building Consultant to continually inconvenience our clients by having to repeatedly make further appointments to remedy defective documentation which the Building Consultant should have prepared correctly in the first place.  We also can not have Building Consultants underquoting our prices since it creates an atmosphere of distrust and destroys the company’s good name in the community and the goodwill which we have built up over 52 years.

I reiterate the company’s position so there can be absolutely no misunderstanding.  If your performance does not improve to the company’s requisite standard, as explained by Renato, Roz and myself in numerous discussions and as referred to in your warning letter, we will terminate your contract of employment.

212                      As my findings indicate, I do not find that communications between Mr Daminato and Ms Sharrad had conveyed to her that her file preparation and presentation was seriously defective.  Nor do I accept that Mr M Hickinbotham had conveyed that to her.  Nor do I find that, in those respects, her standards were generally worse than other new building consultants.  I have given reasons for those conclusions earlier.  More importantly, in my view, that letter consciously overstates the position about those matters.  There is no evidence (which it would have been in the position of Homes to adduce) that any client of Ms Poniatowska had complained about her work or the progress of their projects, or that Ms Poniatowska underquoted prices.  She may have made quotation errors, but there is no evidence that she did so more frequently or in any more significant way than other building consultants.  Mr Daminato’s review of all proposed contracts was precisely to guard against such errors on the part of building consultants.

THE SECOND WARNING LETTER

213                      On 13 December 2005, Ms Poniatowska attended a meeting with Mr M Hickinbotham, Ms Sharrad and Mr Daminato.  She says she expected to discuss her concern at that meeting that Ms Sharrad was transferring her clients to other consultants as she had requested such a meeting for that purpose.  That topic turned out not to be discussed at the meeting.  Mr M Hickinbotham says he called that meeting to discuss Ms Poniatowska’s email of 12 December 2005 and his response.

214                      At its commencement, Ms Poniatowska was given the letter of 13 December 2005 just referred to.  She was also given a “Further Warning” letter dated 13 December 2005 (the second warning letter).  After that heading, it read as follows:

I was disappointed to have a complaint from one of your clients on Monday, 12 December, 2005.

He said that he had met with you in the display village over the weekend and had completed documentation and given you a deposit for Lot 34 Albany Way, Seaford Rise – which as you know is a block in the first release of our Coast Estate.

The client had paid his deposit on this block based on your assurances that the land opposite would be dedicated as a reserve and would not be built on.  He subsequently undertook his own investigation of this land, and discovered that it was in fact earmarked as a future development site.  It is marked as such on the site plan in the Coast Estate brochure.

When the client contacted you on Monday to cancel his purchase of Lot 34, you advised him that the land sloped down and that he would still be able to see the ocean.  He was unimpressed with this change of advice, and later rang to register his complaint with me.

Aside from this false information given to a client, you had previously been advised that nothing should be done with Lot 1 and Lot 34 at Coast until a roundabout issue which our Land Development Manager, Matt Gazzard, was dealing with had been resolved.  You were advised of this on 28 November, and Matt has not yet given you a clearance for you or any other Building Consultants to proceed with the sales of these blocks.  You should not have taken a deposit on this block until the roundabout issue had been resolved, as changes to the block’s dimensions could be made.

Accordingly, please regard this letter as a formal warning for unsatisfactory performance.  Any further instances of unsatisfactory performance in any regard will result in the company giving serious consideration to terminating your contract of employment.

215                      Ms Poniatowska was given an opportunity to read the second warning letter herself, and she did so.  It had no supporting documentation with it, although that observation is not made as a criticism of anyone.

216                      There is some difference in the evidence about the extent to which the letter of 13 December 2005 responding to Mrs Poniatowska’s email of 12 December 2005 was discussed.  That is not important.  There is no submission that any conversation about that letter is of especial significance.  There is also some difference in the evidence about the precise sequence of discussion and events relating to the second warning letter.

217                      The evidence is clear enough that, fairly early in that meeting, the second warning letter was raised.  Mr M Hickinbotham certainly pointed out that the formal warning was given regarding two aspects: the advice to the client about a reserve opposite Lot 34, Albany Way, Seaford Rise; and secondly, accepting a deposit over that allotment after being told not to do so whilst a roundabout issue was unresolved.  Ms Poniatowska tried to interrupt his comments, to dispute their accuracy, but was unable to do so.  At some point, I find after the presentation by Mr M Hickinbotham, Ms Poniatowska did dispute the accuracy of those matters.  In response, she was presented with a brochure (the promotional brochure) which, it was said, confirmed the correctness of the complaint that she misled the client by indicating a reserve would be opposite Lot 34.

218                      It is necessary to say something about the promotional brochure.

219                      Albany Way runs east/west along what was then the northern boundary of the development of Seaford Rise.  At one point running south from Albany Way is a junction with Esperance Boulevard, with a roundabout at the junction. 

220                      The promotional brochure produced by the Hickinbotham Group on that occasion is clearly a promotional brochure for the development.  It is attractively presented as a three double-sided brochure (each page about three quarter A4 size) with attractive text and photographs of a section of beach, a number of other attractive scenes, and general map of the wider area on one page to locate the Seaford Rise development area, and a detailed site plan on another page.  The front of the promotional brochure has a logo mark entitled “Coast Seaford” in stylised writing with what appears to be two stylised pebbles.  The site plan has a text which includes a note:

This plan is for marketing purposes only.  Any easements shown and all data may be subject to variation at the discretion of statutory authorities … [with other reservations or disclaimers].

On the northern side of Albany Way adjacent to the junction with Esperance Boulevard is an area marked “Future development site”. 

221                      At about the point when the promotional brochure was produced, Ms Poniatowska left the room.  I accept that she was frustrated and angry.  She returned shortly afterwards, with a different brochure.  She produced it, perhaps aggressively, as she was confident that that aspect of the complaint was unjustified.  There is some inconsistent evidence about whether she left the meeting on two occasions, and whether the other occasion was because she was asked to do so.  I do not need to make a finding about that.

222                      The brochure produced by Ms Poniatowska (the earlier brochure) is a less sophisticated document.  It is a double-sided A4 sheet of which one side (occupying about three quarters of the sheet) is of various colours and is headed “STAGE ONE – TORQUAY PRECINCT”, under which appears a series of columns headed lot, address, area, frontage and price.  It too has a note on that page which reads as follows:

Note: Prices may change without notice.  This plan is for marketing purposes only.  Any easements shown and all data may be subject to variation at the discretion of statutory authorities … [with other reservations or disclaimers].

223                      The other side of the page has the identical stylised “Coast Seaford” presentation with the two stylised pebbles.  That appears just below half-way down the page.  There is nothing below it.  The upper half of the page contains a black and white site plan, not as attractively presented as that in the promotional brochure (where the site plan is coloured).  As the allotments to the south-eastern section have not been marked out, it appears to have been prepared earlier.  There is less of the area north of Albany Way shown on that plan, but there is a small section of it shown on the plan including approximately adjacent to the junction of Albany Way with Esperance Boulevard.  On the northern side of Albany Way appears the word “reserve”.  There is no indication of a future development site.

224                      Ms Sharrad in her evidence in chief said that when Ms Poniatowska produced the earlier brochure, she aggressively pushed it towards Mr M Hickinbotham saying that that was the one she had used to inform the client.  He responded that she had used the wrong brochure and that it was not “an official Coast brochure”, and that it was “used for the consultants to use in the display villages” but not to be provided to members of the public.  Ms Sharrad sought in her evidence to justify those assertions.

225                      I found her evidence most unsatisfactory.  When she had pointed out to her the words “This plan is for marketing purposes only” in the earlier brochure (as in the promotional brochure), she responded by saying that she did not think that the earlier brochure produced by Ms Poniatowska was the correct document, because it was in black and white only.  It was not.  She also suggested at one point as a possibility that the two pages may have been merged together when in fact they were separate documents.  I find that a most extraordinary suggestion.  The two pages would be most difficult to have fabricated as one document because of their presentation, one side being coloured with what appears to be an olive green colour used in part in other material and the other side containing the Coast Seaford logo and wording in colour.  It is true that the plan is in black and white.  Ms Sharrad accepted ultimately that the earlier brochure was a marketing document and was part of the professional presentation of Homes.  She then said that the front page (presumably the site plan page with the Coast Seaford logo on it) was not for distribution because it had “reserve” marked on it.  Her emphasis on seeing only a black and white document I think indicates that, at that meeting, neither she nor Mr M Hickinbotham were prepared to tolerate a suggestion from Ms Poniatowska that she had correctly referred to a document to which she was entitled to refer.  She ended up by saying “it doesn’t look accurate to me and I don’t know how it’s come about” but then she acknowledged that the page of the earlier brochure having the Coast Seaford colouring and logo was part of the marketing presentation style but that the “reserve” notation is incorrect.  I also perceived that her demeanour immediately after the luncheon break, when she returned to give further evidence about that meeting, was more subdued and less assertive as was the case at a later point in her cross-examination.  Overall, her demeanour on addressing this issue contributed to a not insignificant degree in forming my view about her overall reliability as a witness.  I formed the firm impression on her evidence that in significant respects she was prepared to adhere to what her employer expected her to say without any reliable memory of what had occurred, and indeed to the point of dishonesty.  Her explanations for discounting the earlier brochure when presented were simply demonstrably silly, and untenable. 

226                      On the other hand, Ms Poniatowska’s evidence on this topic was quite confident and impressive.  She was clear that the promotional brochure was not in use, at least at the display village she was at, in late 2005 when she was dealing with the client.  She was clear that the earlier brochure was available at that display village at that time (about which ultimately there was no contest) and was used for marketing purposes.

227                      I should also remark about Mr M Hickinbotham’s evidence about the meeting on 13 December 2005.  I found it unimpressive for two particular reasons.

228                      The first is his insistence, in the face of the earlier brochure, that the promotional brochure only should have been used as it was the “official” brochure.  At least that showed to me a commitment to his viewpoint irrespective of one other apparently reasonable viewpoint, especially as there was no evidence adduced from Mr Gazzard, the person responsible for having issued to the display villages the promotional brochure, about how and precisely when that was done or about what steps were taken to ensure the withdrawal of the earlier brochure.  For the first time in the evidence, during his cross-examination, Mr M Hickinbotham said that it was incumbent on the building consultants to ensure they used only the most current brochure, and that it was “drummed into” them that they needed to know the most current brochure.  No such proposition had earlier emerged through Ms Sharrad; nor was it put to Ms Poniatowska or to Mr Read, Ms Hopko, or Mr Flynn who had earlier given evidence.  Mr Daminato, who was present at the meeting on 13 December 2005, and whose evidence revealed that he had no direct role in such matters, said that promotional brochures were periodically superseded and that he would not expect a superseded brochure to be used beyond a period of about six months.  The evidence, quite tellingly, shows that a contract for the sale of Lot 21 Torquay Drive (the allotment also the subject of the third warning letter), was put forward by Ms Kazis in May 2006 and that the earlier brochure was still in use, at least to identify the locality of the property being purchased.

229                      The second is his assertion that the purpose of the meeting of 13 December 2005, in respect of the complaint concerning the dealings with Lot 34 Albany Way, was to hear what Ms Poniatowska had to say so that, if he was persuaded by her response, the second warning letter would not go on her file.  He had not previously informed her of the complaint.  The complaint was made orally.  He had not had it investigated.  He had simply prepared the second warning letter.  It assumed guilt.  His explanation of the difference between a warning letter and a warning letter on the file was unimpressive.  The second warning letter is quite specific.  Ms Poniatowska had little chance of responding at the meeting.  It was fortuitous that she was so readily able to find at the head office a copy of the earlier brochure.  He was, I find, resistant in an unsatisfactory way to the status of the earlier brochure, and was simply dismissive of it.  In cross-examination, he described it as a stage plan, rather than a promotional brochure.  It did not appear to me to be an internal document only, for the reasons I have given; and both Ms Sharrad and Mr Daminato appeared ultimately not to resort to that distinction.  The person responsible for it was not called to give evidence.  At one point, Mr M Hickinbotham appeared to assert that in substance Ms Poniatowska did not dispute the facts asserted in the second warning letter, so he decided it should stand.  She clearly did so.

230                      Those matters also caused me to question in significant other respects the reliability of the evidence of Mr M Hickinbotham.  They also add to the material upon which I reject the claim of Homes that the termination of Ms Poniatowska was for the stated reasons.  The add to the picture which ultimately I find to have been formed that the reasons given for her termination were contrived.

231                      It is necessary to deal with the second matter raised in the second warning letter.

232                      Mr M Hickinbotham said that, in any event, Ms Poniatowska had explicit instructions not to sell Lot 34 Albany Way, so that the warning letter would stand.  She then rushed out upset.  He denied that Ms Poniatowska disputed that the transaction regarding Lot 34 had not occurred, or that she had not taken a deposit.  He said that she had accepted the fact.  It is unclear where Mr M Hickinbotham got the information about Ms Poniatowska having accepted a deposit for Lot 34 Albany Way contrary to instructions.  Ms Sharrad had no input into the terms of the second warning letter and was not consulted about it.  Mr Gazzard did not give evidence.  Although Mr M Hickinbotham said that Ms Poniatowska did not deny at the meeting having taken a deposit for that Lot, I accept Ms Poniatowska’s evidence that she did deny having done so.  She asserted that there was no receipt for the deposit she had allegedly taken, and invited Mr M Hickinbotham to produce one.  He did not.  He had seen no documents to support the factual assertions in the second warning letter.  He had not spoken to the particular clients.

233                      There was a system of Homes maintained by Ms Hawes, under the supervision of Ms Sharrad, whereby building consultants should promptly send an SMS text message to the head office when an allotment was put “on hold” and when it was sold (by the signing of a contract and the taking of a deposit), and other building consultants were notified.  The system was, at least in part, to ensure that an allotment was not doubly committed, although it was permissible to record a “back up hold” to secure a property for a client if the primary client did not proceed.  That record has no reference in the relevant period to Lot 34 Albany Way.  Ms Poniatowska in the course of the hearing produced her copy of the receipt books covering the period.  There is no duplicate receipt relating to that allotment, although there are a few missing receipts.  There is nothing sinister about that, as some receipts were wrongly written and the records simply removed and a fresh receipt written out.

234                      In my judgment, Ms Poniatowska had not sold Lot 34 Albany Way and accepted a deposit for it, as asserted by Homes in the second warning letter.  It is common ground that she had been dealing with a potential client with a view to selling that allotment, and had pointed out (based on the earlier brochure) the reserve on the opposite side of Esperance Boulevard.  I do not consider that she had progressed that transaction beyond that.

235                      I note, incidentally, that Mr M Hickinbotham subsequently reasserted in the third warning letter that Ms Poniatowska had been told by Mr Gazzard not to deal with Lots 1 and 34 (which are on opposite corners of the junction with Esperance Boulevard) because of a roundabout issue.  However, the records kept by Ms Hawes of the sales and “holds” of allotments shows that Ms Poniatowska sold Lot 1 on 25 November 2005, and that no officer of Homes had objected to that.

236                      Had Mr M Hickinbotham made appropriate inquiries before issuing the second warning letter, he would have seen from the records of Homes that Ms Poniatowska had neither put a hold on that allotment, nor sold it and accepted a deposit for it.

237                      One feature of Mr M Hickinbotham’s evidence which I found hard to understand, and which causes me to doubt his evidence about this meeting and more generally, is the way in which he dealt with complaints concerning Ms Poniatowska.  I have referred to it above.  He accepted that he had not previously communicated to Ms Poniatowska in any way regarding the complaint about Lot 34 Albany Way.  Her first notice of the complaint was given when she received the second warning letter at the meeting on 13 December 2005.  He said he sought her response in the meeting itself, and that she did not dispute any facts.  That is plainly incorrect.  He said he wanted her to present her side of the story, and that he would withdraw the warning if he was persuaded that that was the case.  The letter itself assumes guilt.  It does not indicate an opportunity to provide explanation.  It does not indicate a preparedness to withdraw the warning if an explanation is given.

238                      It is a curious procedure for any employer to provide a warning on the basis of oral information provided by a client, without first checking with the employee concerned to see what that employee says about it, particularly in the absence of documentation.  There was no documentation obtained from the client (at least as the evidence discloses) and no other documentation presented at the meeting.  In fact, Mr M Hickinbotham accepted in cross-examination that he had received no documentation about the complaint, and that it may be that she had not written out the receipt which he asserted she had written out.  He simply adhered to the assertion that Ms Poniatowska did not at the meeting dispute the facts.  He did not ask for her deposit book at the time.  Had he genuinely wished to explore her dispute on that matter, he could readily have done so.  He gave his evidence after the evidence of Ms Sharrad.  She had said that Ms Poniatowska’s “stage plan” was available to hand out to clients and was available for display, and was used for marketing.  There was no evidence directly from Mr Gazzard or from any other person as to when the promotional brochure came to be available.  There was no evidence from Mr Gazzard of any conversations with Ms Poniatowska in the terms asserted in the second warning letter or at all.  There was no evidence from Mr Gazzard or anyone else as to building consultants being instructed not to use a particular brochure because it had been replaced, or of any system to remove brochures such as that apparently available to Ms Poniatowska.

239                      Those features of Mr M Hickinbotham’s handling of the complaint recur in other respects.

240                      It is also significant, in my view, that Mr M Hickinbotham took no steps to further investigate the matter when he received from Ms Poniatowska an email on 5 January 2006 asking for an urgent meeting as she considered her position was being “white anted”.  Specifically, she said she “totally refuse (sic, refute) [the] very disturbing accusations” in the second warning letter, and in the third warning letter.  Indeed, his conduct then shows a closed mind to her concerns, and no interest in ascertaining the true facts.  He sent the email to be filed, with a request to Ms Hawes in the following terms:

Roz / ren – any other issues you believe we should put?

 

Sally plse draft a response

 

You can tidy up but the main points are as follows

 

Refer to the email

 

Plse understand the following

 

The warning letters stand

The matters raised in those letters are of the utmost seriousness

Your performance is under review

Again I reiterate that your sales performance is not satisfactory for the reasons outlined in the warning letters – I do not see how you could possibly believe otherwise after the written and verbal warnings you have received

I am personally familiar with the reasons for the warnings you have received having personally spent many hours investigating and understanding them myself – moreover I trust the judgement of my managers and have worked with them for many years and for these reasons do not accept your assertion that you are being “white anted”

I am totally satisfied that you have been accorded fair treatment in the feedback and warnings you have received and the opportunities you have received to explain your actions and put your side of the story

I am willing to discuss this issue with you yet again – but it will have to wait until I return from leave

Finally I take this opportunity to note that you misled the company about your qualifications – you represented that you hold an mba from the usa – it turns out you do not have this qualification at all and have a further 12 subjects to complete before you receive an mba

This may seem trivial to you but I see it as yet another example of misleading conduct on your part

241                      It was untrue that Mr M Hickinbotham had spent many hours investigating and understanding the reasons for the warnings.  There is no evidence to support that claim.  He may have discussed a few times Ms Poniatowska’s file preparation and presentation with Ms Sharrad and Mr Daminato, but his “investigations” did not go beyond that.  I shall not repeat my findings about how the subject matter of the warnings came to be identified and “investigated”.

242                      The response from Ms Sharrad on 6 January 2006 was as follows:

Gosia also misled the company on her application form (on file) regarding her marital status on which she has stated spouse self employed.  This was significant to me at the interview because when I asked if she had done commission only selling she said her husband owned a caryard and she sold cars for him.  Approx 3 weeks after her appointment she came into my office to tell me that she had lied and that she was a single mother.

Ms Sharrad did not satisfactorily explain why she did not take any action when Ms Poniatowska told her about that inaccuracy in her application form.  Mr Daminato did not respond to the request.

THE THIRD WARNING LETTER

243                      On 20 December 2005, Ms Poniatowska received yet another letter headed “Further Warning” under the hand of Mr M Hickinbotham (the third warning letter).  It concerned her dealings with a Ms Scoble and a Mr Jones about Lot 21 Torquay Drive, Seaford Rise.  They had apparently complained that Ms Poniatowska had been misleading.

244                      The letter set out the following details:

On 2 December, 2005, you received a text message from the office, advising you that Ann Kazis had put Lot 21 on hold.

On 7 December, 2005, a text message was sent out confirming that you had put a back-up hold on this block for Scoble.

On 9 December, 2005, you received a text message from the office, advising you that Ann Kazis had sold Lot 21.

On 12 December, 2005, a text message was sent out confirming that you had sold Lot 20 Torquay Drive.

This sequence of messages can be seen on the print-out from the SMS program which is attached to this letter.

Natalie was upset because she and Matthew had spoken to you on three separate occasions, at each one of which they were advised you had secured a different block for them.

You took a deposit from them for Lot 21 – you should not have done so as this block was on hold, and subsequently sold, by another Building Consultant.

You told Sally Hawes that you had sold Lot 20 to Jones, but your clients were unsure as to what was going on and did not know which block, if any, they had purchased, because of your lack of communication.  Our records related to the deposit you took from the clients are also incorrect, as your receipt states the deposit is for Lot 21.

245                      As with the second warning letter, it concluded by saying it was a formal warning for unsatisfactory performance, and that any further instances of unsatisfactory performance may result in termination of her employment.

246                      Ms Poniatowska was given that letter at a meeting, called by Ms Sharrad and in the presence also of Ms Hawes.  It appears Mr M Hickinbotham was away on that day.  Ms Poniatowska agrees that the sequence of four messages is taken from the SMS text message printout record maintained by Ms Hawes.  However, at the meeting she disputed that she had acted improperly, even though she agreed she had accepted a deposit for Lot 21, as the rule was that no deposit should be taken if an allotment was already on hold. 

247                      Ms Poniatowska confirmed that on 12 December 2005 she sold Lot 20, rather than Lot 21, to Ms Scoble and Mr Jones (the fourth of the four extracted entries).  Subsequently, in early January 2006, the contract over Lot 21 fell through and Ms Poniatowska asked Ms Sharrad if she could transfer the Scoble/Jones contract back to Lot 21.  She says that Ms Sharrad refused to let that happen.  That may have been because there was, by then, another “hold” on Lot 21.

248                      Ms Poniatowska’s evidence, to explain her conduct, was that Ms Scoble and Mr Jones on 7 December 2005 were anxious to confirm the “back up hold” on Lot 21 by paying a deposit.  At first, she said that she was unable to accept it.  Then, with the encouragement of Ms Scoble, she made a series of phone calls in the presence of Ms Scoble.  First she rang Ms Hawes to find out the name of the building consultant with the “hold” on Lot 21; she got the name of Mrs Kazis.  Then she rang Ms Kazis to check the status of the “hold”; she was told that the “hold” looked like lapsing, but had two days to go.  Then she rang Ms Sharrad to explain the circumstances, including that the client wanted to pay the deposit.  Ms Sharrad, she claims, told her to accept the deposit.  Then, when the “hold” contract on Lot 21 was taken up, she notified Ms Scoble who agreed to transfer the deposit to Lot 20 and to proceed with a contract over Lot 20.

249                      Ms Sharrad was not involved in the preparation of the third warning letter, nor in its content.  She did not herself speak to Ms Scoble.  She was not involved in any investigation into the complaint.  Mr M Hickinbotham prepared it.  He did not speak to Ms Poniatowska before arranging to give it to her, nor did he speak to Ms Scoble at that time.  He relied upon an investigation by Ms Hawes, but it is unclear what she did to investigate the complaint beyond checking the SMS text message records.  Ms Hawes did not give evidence about it.

250                      Ms Sharrad disputed that she had any such conversation with Ms Poniatowska.  However, for reasons already given, I prefer Ms Poniatowska’s evidence on that topic.  At the time of her giving that evidence, I noted particularly that it was cogent and persuasively given.  Moreover, evidence apparently available to Homes, which could have contradicted her evidence was not called: Ms Hawes, Ms Kazis and Ms Scoble.

251                      I note there was a further conversation between Ms Poniatowska and Ms Sharrad which was contentious.  Ms Poniatowska says that Ms Sharrad, in effect, told her that she (Ms Sharrad) would have Ms Poniatowska out of her position by the end of the month (understood as meaning the end of January 2006).  Ms Sharrad says she asked Ms Hawes to leave the room, and then counselled Ms Poniatowska that if she did not improve her performance by listening to Ms Sharrad, the “complaint letters will keep coming and you’ll be out on North Terrace by the end of January”.  I do not make a finding about which version is correct.  Ms Poniatowska, on both accounts, became quite upset during the meeting.  She may have misunderstood what Ms Sharrad said.  A finding as to whose evidence on that particular topic was correct would not, in the overall picture, assist me in any material way to decide the case.

252                      Ms Poniatowska, as noted above, on 5 January 2006 by email conveyed to Mr M Hickinbotham that she disputed the basis for the third warning letter.  She sought an opportunity to discuss it with him.  His response was first a brief email of 5 January 2006 saying that he would deal with her request when he returned from leave, and then the email to Ms Hawes referred to in [240] above, followed by a letter of 19 January 2006.  I note subsequently, the clients put their complaint in writing by letter dated 18 January 2006 received on 23 January 2006.

253                      For the reasons I have given, I find that the third warning letter was unwarranted.  I also find that it was given without any notice to Ms Poniatowska, and so without her being given the opportunity to respond to it.  Her explanation proffered at the meeting of 20 December 2005 was neither recorded by Ms Sharrad, nor investigated.  When she sought the opportunity to speak to Mr M Hickinbotham about it, after Ms Sharrad had simply ignored her response – even to the point of not conveying it to Mr M Hickinbotham in writing – his response by his email to his senior staff indicated a mind closed to the possibility of her having an explanation.  It did not demonstrate any interest in getting at the truth of the complaint. 

254                      A minor element in the scheme of things, but not insignificant, is the comment in the letter of 19 January 2006 that Ms Poniatowska misled Homes about her employment qualifications by representing that she had “an MBA” from the University of South Australia.  Her curriculum vitae as provided, under the heading “Further Studies” says in respect of that course that it is “2002 – current”, that is, had not been completed.  When confronted with that, Mr M Hickinbotham said that his observation was based upon an oral conversation when Ms Poniatowska had told him she had that qualification.  I think that is an illustration of Mr M Hickinbotham’s tendency to reconstruct events.  It is inherently unlikely that, having presented the real picture n her employment application, she would then tell Mr M Hickinbotham something different or, indeed, that he would have placed any weight on such a conversation (if it occurred) in the face of her employment application.

255                      It is a picture which adds to the overall conclusion I have reached that the reasons for the steps taken leading to the termination of Ms Poniatowska’s employment were not related to a genuine concern about the quality of her work.

256                      On 24 January 2006, Ms Poniatowska again emailed Mr M Hickinbotham asking to speak to him as she considered her work performance was satisfactory, and she believed he was being given misleading information about her.  He responded by email the following day saying he was prepared to discuss the matter with her, and that Ms Hawes would arrange a meeting.

257                      A meeting took place on 6 February 2006.  Ms Sharrad and Mr Daminato were also present.  At that meeting, Ms Poniatowska said she wanted the three warning letters withdrawn as they were unfair.  Mr M Hickinbotham said that he would not go over “old ground”.  He refused to withdraw the three warning letters, and told her she had not met company standards.  The meeting was a short one.  Although Mr M Hickinbotham’s notes indicate that, to a degree, the earlier warnings were discussed, I do not consider that such discussion was more than cursory.  Nothing was said about them of any moment to resolution of the present issues.

THE SUSPENSION LETTER

258                      On 10 February 2006, Ms Poniatowska was asked to attend a fairly short meeting in company with Ms Sharrad, Mr Daminato and Mr Wright.  It lasted only between 10 and 15 minutes.  At the commencement of that meeting she was presented with a further document signed by Mr M Hickinbotham entitled “Investigation” (the suspension letter).  It was in the following terms:

I refer to our warning letters to you of 18 November, 2005 and 13 December, 2005.

It has come to my attention that on at least four other jobs on which you were working, you have made further serious errors including failing to provide for specific measurements, details, costing and submitting files without the appropriate signed documentation.  These errors could seriously compromise our relationship with our clients, our reputation and our standing within the building community.  These errors are also precisely the same type of errors that you have been extensively counselled about and the subject of the above warning letters.

Additionally, we have received a complaint from one of our clients that they have been so unhappy with the level of service that they have received from you that they refuse to deal with you in the future.

We take the complaint and the further errors very seriously and intend to investigate the matters fully.  To that end, we suspend you from your employment, effectively immediately upon full pay to allow the investigation to occur.  We propose to complete the investigation and meet with you on Wednesday, 15 February, 2006 at 4:00pm to put the allegations to you and obtain your response.  You may bring a support person if you wish.  Should the matters be proven, we advise you that disciplinary action will be taken, which may include termination of employment.

During the period of your suspension we direct that you have no contact with clients or staff.  Please advise Roz Sharrad should there be any client expectations that need to be met during this period, so that we can attend to them.

259                      Mr Wright gave her the suspension letter and gave her time to read it. 

260                      I have made findings above about the matters referred to in the second paragraph of that letter.  I shall not repeat them.

261                      The further complaint as identified in the evidence was from a Mr and Mrs Pearson.  Ms Poniatowska had been given the handwritten letter from Mr and Mrs Pearson, which complained of “misleading and unprofessional” conduct by Ms Poniatowska before that meeting.  The letter relevantly reads:

We were told that if we signed, then the offer would include 2 dutch gables.  Our quotation paper work confirmed this and she also gave us a computer print out of the front elevation of the house.

When we received our final draft drawings, we noticed the omission of a gable and also we had asked to raise 5 ceilings.  It has been explained to us that only 3 can be raised, but no one will give us a price for 3 raised ceilings saying they are PC.  This was not explained to us.  We passed Emails with Sarah Dolby. … We have since found out we signed another quotation that Gosia brought down to us in Victor Harbour.  She came across dinner when we were busy and she was in a hurry.  She told us that nothing had changed.  Stupidly we signed without checking, so yes, it is our fault.

We have now signed the final copy and the soil report after much deliberation and hope to start asap.  We are still looking forward to building with you, but we strongly ask that we have no further dealings with Gosia.

262                      The suspension was to allow an investigation to occur.  It then took place, conducted by Mr Wright, between 9 and 21 February 2006.  By the time of the meeting of 10 February 2006, Ms Poniatowska had provided by email to Mr M Hickinbotham a response to Mr Pearson’s note which reads:

Thank you for the note from Mr Pearson.

You should know my side of the story.

This particular client was very demanding.  I accommodated several of his demands at my expense, giving him out of my commission – additional sliding door, insolation (sic) and additional window, but I could not give him the second Dutch gable at no cost.

I’m sure Michael, you don’t want me to give away the company money.

If you want to talk to me about this particular client I’ll be delighted.

At no time did Mr M Hickinbotham provide any response.  He did not himself investigate, or react to, the suggestion of “additional sliding door, insolation (sic) and additional window” having been given to the Pearsons.  At no time did Mr Wright discuss the allegations or her response with her.  He did not even check the file.  He assumed that what the Pearsons said was correct.

263                      A review of the evidence extracted from the file and elsewhere discloses that, at some point, there was a drawing of the proposed home for the Pearsons which had two Dutch gables.  It does not appear ever to have been signed by them.  There is a further drawing which is signed by them and which has one Dutch gable.  On the quotation form signed by them and dated 1 October 2005, the external elevation includes a specification of one Dutch gable.  In the formal elevation drawing prepared internally by Homes, there is one Dutch gable.  That drawing became part of the contract signed by the Pearsons.  A variation costing request was provided to the Pearsons on 28 November 2005, and then signed by them as authorised by them, which did not refer to an additional Dutch gable.  Subsequently, on 2 March 2006 following Council approval granted on 28 February 2006, the Pearsons requested variations to the contract to the value of $5,840 (after deleting one item for $900) which did not include the additional Dutch gable which they claimed to be entitled to.

264                      The building application was submitted on 23 January 2006, and notified to the Pearsons on that date by the Building Administration Assistant, Sarah Dolby.  In response, the Pearsons by email to Ms Dolby on 24 January 2006 commented that they had not signed the final draft papers because they had been shown a print out with two Dutch gables and that the final drawing (prepared internally) showed only one, and because there was another issue regarding the raising of ceilings.  Ms Dolby responded that she had checked the file and that there was no drawing show two Dutch gables.  She asked for a copy of it.  A plan was then sent which is the unsigned, and apparently earlier plan provided in the nature of a sketch drawing rather than a formal drawing.  The next event was simply the handwritten complaint to which reference has been made.

265                      There are two particular matters of significance, in my view, about that process.

266                      In the termination letter, following the meeting of 21 February 2006, that is the letter of 23 February 2006, Mr M Hickinbotham said:

We discussed with you a very serious complaint from one of our clients, the client claimed that you had deliberately misled them in negotiations leading into their contracts being signed.  They have been so unhappy with the level of service that they have received from you that they refuse to deal with you in the future.

Your response to this issue was that the clients were very demanding, wanted things for free and you disputed the facts generally.  We do not accept your approach or attitude towards this serious issue.  Our reputation and the manner in which our sales consultants represent themselves to our clients are critical in our industry.  This conduct breaches our Code of Conduct and directions about conduct towards our clients.

267                      In fact, it is hard to see what investigation Mr Wright carried out at all.

268                      Mr Wright is the Financial Controller of the Hickinbotham Group and has been for some 10 years.  He is well qualified for that position.  He confirmed that Mr M Hickinbotham had requested him to conduct the investigation, and to suspend Ms Poniatowska during the course of that investigation.  He subsequently spoke to Mr Pearson by telephone and recorded, in a memorandum he subsequently passed to Mr M Hickinbotham on 21 February 2006, that the Pearsons had been given an elevation and roof structure drawing showing two Dutch gables together with a quotation to that effect, which they then signed.  He asserted that Mr Pearson had said he would be faxing through that quotation showing the two Dutch gables with the proposed elevation showing two Dutch gables, signed by them, on 22 February 2006.  Otherwise, the notes repeat what was recorded in the email to Sarah Dolby referred to above.  He concluded:

My view of this matter is that Gosia has breached clause 25 of the companies code of conduct, in that she has misled the clients that they were to receive 2 gables on their roof and then altered the quote and had the clients re-sign a new one without explaining this to the client.

269                      That is an extraordinarily superficial investigation for a man charged with such responsibility, with a prospect of termination of an employee.  It is inexplicably so.  The termination meeting took place on 21 February 2006.  Mr Wright attended it, and had apparently given Mr M Hickinbotham his memorandum dealing with the complaint shortly beforehand, as it is also dated 21 February 2006.

270                      There is no document produced in evidence which shows a quotation provided by Ms Poniatowska containing two Dutch gables.  There is no elevation drawing showing the two Dutch gables, which has been signed by them.  Mr Wright did not even wait until 22 February 2006, when he had been told by the Pearsons that such a document would be produced, to form his view.  He did not speak to Ms Poniatowska about it.  There is no such document.  I infer that, had the Pearsons produced such a document on 22 February 2006 as they asserted, it would have been produced in the course of the hearing by one or other of the respondents.

271                      In fact, as Mr Wright acknowledged, Ms Poniatowska at the termination meeting on 21 February 2006 was confronted with Mr Wright’s report to Mr M Hickinbotham explaining the results of his investigation, which he “outlined” over about five minutes.  It could only have been a report on the Pearson conversation, as the investigation could not rationally have been completed until each of the inquiries he was expecting to be responded to had been completed.  Ms Poniatowska said that she did not accept the complaint.  She said the quote, the contract and the elevation were all signed at the same time.  She pointed out that the clients were very demanding, wanting lots of things for free.  She asserted a conspiracy against her. 

272                      In his cross-examination, Mr Wright acknowledged that the result of his inquiry of Mr Pearson was not reported to Ms Poniatowska before the termination meeting.  He did not ask Mr Pearson whether, as Ms Poniatowska had said, they received additional items for free (that is out of Ms Poniatowska’s consultancy fee).  The original quotation is not referred to in the report, but it is in the file.  He says he looked at the file.  In that file, as I have noted, there is no reference to an earlier quotation for two Dutch gables.  The only signed quotation is for one Dutch gable.  He recognised in cross-examination, but he did not see at the time, that the elevation in the file which had been signed by the Pearsons contained one Dutch gable.  He recognised that the final draft drawings showing one Dutch gable had been signed and initialled by the Pearsons.  He did not speak to Ms Dolby to get the exchange of emails from her.  He acknowledged that he did not see any drawing at all showing two Dutch gables.  He believed that there was one which may have been on the file.  I note that Mr Daminato extracted the Pearson file for the purposes of this proceeding.  He saw, stapled to the hard copy of an email exchange between Mr Pearson and Ms Dolby of 24 and 25 January 2006, the unsigned drawing showing two Dutch gables.  It is probably the document sent in by Mr Pearson on or after 22 February 2006.  It was not on the file at the time of those emails, as there is a handwritten notation that the picture was to be sent in.  Mr Wright did not see that document before the termination meeting. 

273                      Mr Wright was unaware before his report to Mr M Hickinbotham that Ms Poniatowska contested the complaint.  He did not speak to her.  He did not receive from Mr M Hickinbotham the email which she sent to him.  He simply assumed the facts Mr Pearson reported to him.  In certain of his answers, I perceived a strong defensiveness, perhaps understandably given the inadequacy of the investigation he conducted.

274                      There is another element of the evidence about that transaction which emerged in the course of the hearing.  Ms Poniatowska said that she had included in her quotation three additional items which were “free”, that is at her expense by reducing her commission on the transaction, rather than by requiring the Pearsons to pay for them.  In his cross-examination, Mr M Hickinbotham said that she should not have done so and the company had a strict policy that such action was not permitted.  He was wrong about that.  Both Ms Sharrad and Mr Wright acknowledged that sometimes consultants paid for extras in a contract rather than to lose the contract.  It was apparently commonplace.  Indeed, Ms Sharrad said that she had suggested to Ms Poniatowska that she should reduce her commission to pay for the extra gable rather than to have their complaint go forward.  Mr M Hickinbotham, after a break in evidence, came back and said that the so called strict policy was not in fact a strict policy and Homes permitted consultants to do that if the company had previously signed off on the proposal.  That was not suggested by either Mr Sharrad or Mr Wright, or indeed Mr Daminato.  Neither Ms Sharrad, if she saw the transaction as it had been approved, nor Mr Daminato, commented upon that when this transaction was going through for Mr Daminato’s approval before the formal contract stage.  That is but a small feature of a number of elements of Mr M Hickinbotham’s evidence which caused me some concern.

275                      Moreover, Mr Wright in his evidence said that Homes would add particular items or replace particular items at no charge at the discretion of Mr M Hickinbotham in the interests of preserving its good name, if a client properly understood that a certain item had been promised but had not been included in the plans.  That would make sense.  There is no doubt that, in such an industry, scope for occasional errors or misunderstandings exists.  That did not happen.  Had Mr M Hickinbotham been so convinced of the mistake on the part of Ms Poniatowska (despite all the documentary evidence being to the contrary) there is no apparent reason why he would not have allowed that additional Dutch gable as distinct from a single gable in the Pearson’s contract.

276                      Mr Wright’s investigation was, to say the least, quite unsatisfactory.  As I have noted, I discerned in his evidence from time to time some defensiveness in the way he answered some of the questions.  My conclusion is that he conducted, at the least, a slap dash report because he knew or understood that Mr M Hickinbotham expected a conclusion to be reached by him critical of Ms Poniatowska.  I do not need to go further to determine whether his report was deliberately dishonest.  However, his evidence in that light confirms the impression I have developed from the whole of the evidence that the process leading to Ms Poniatowska’s termination was preordained, that is directed to a particular end.

THE TERMINATION LETTER

277                      It is not necessary to refer in detail to the termination letter, or to the meeting of 21 February 2006 at which it was delivered.

278                      The meeting was attended by Mr M Hickinbotham, Mr Wright and Mr Daminato.  Ms Sharrad was in the vicinity, and joined the meeting for part of it only.  Ms Poniatowska was accompanied by Mr Cordeaux.  There was discussion about the same matters that had previously been discussed.  Ms Poniatowska to some degree proffered the explanations she had previously offered.  There was no real interchange, but I find a restatement of positions.  Mr Wright may have reported on his investigation.  Ms Poniatowska confirmed that she thought there was a “conspiracy” to terminate her employment.  Mr Cordeaux invited the meeting to put the past events behind the group collectively, and to move forward positively.  Given the circumstances of that meeting, and its stated purpose, it is not surprising that memories differ about what was said or what occurred.  I do not find the different versions of the conversation at that meeting of especial significance in the overall picture.  I note that Mr M Hickinbotham referred to the relationship between Ms Poniatowska and the Hickinbotham Group and its senior employees being untenable.  If that were so, it was not for anything Ms Poniatowska had done.  After some time, the meeting was adjourned.  The Homes representatives left the meeting for a short private conference.

279                      After that break, they returned.  Mr M Hickinbotham said that it had been decided to terminate Ms Poniatowska’s employment.  He confirmed that position by letter of 23 February 2006 (the termination letter).

280                      The termination letter (part of which has been quoted above) was relevantly in the following terms:

We discussed with you a very serious complaint from one of our clients, the client claimed that you had deliberately misled them in negotiations leading into their contracts being signed.  They have been so unhappy with the level of service that they have received from you that they refuse to deal with you in the future.

Your response to this issue was that the clients were very demanding, wanted things for free and you disputed the facts generally.  We do not accept your approach or attitude towards this serious issue.  Our reputation and the manner in which our sales consultants represent themselves to our clients are critical in our industry.  This conduct breaches our Code of Conduct and directions about conduct towards our clients.

We also put to you the allegations that on four jobs on which you were working, you have made further serious errors including failing to provide for specific measurements, details, costing and submitting files without the appropriate signed documentation.  These errors are precisely the same type of errors that you have been extensively counselled about and the subject of the warning letters of 18 November, 2005, and 13 December, 2005.  These errors could seriously compromise our relationship with our clients, our reputation and our standing within the building community.

Your response to these issues was that you were the subject of a conspiracy, had inadequate training, and were under pressure.  We do not accept these responses as we have provided you with training, and provided you with full support to assist you to succeed in your position.

After considering all the matters you and your representative put to me, I considered that your conduct in misleading the client was a serious breach of our directions to you and Code of Conduct, and amounts to serious and wilful misconduct.  I also took into account the further instances of poor performance and our past warnings to you.  I determined in the circumstances that your employment should be terminated immediately with no notice.

281                      As may be observed, significant weight was placed upon Mr Wright’s investigation.  The investigation was grossly inadequate.  There were clear answers to the complaint, discoverable on the barest of efforts.  Although Ms Poniatowska is noted as having “disputed the facts generally”, the réposte that: “We do not accept your approach or attitude towards this serious issue” is, in that context, quite disingenuous.  I have found that Mr Wright’s “investigation”, or more accurately the outcome of it, was directed to fulfilling an expectation of his employer.  I find that Mr M Hickinbotham was aware that his report did not follow a genuine investigation of that complaint.  I have made findings earlier in these reasons about the relative quality of Ms Poniatowska’s file preparation and presentation, and about how the “four jobs” in which further requisitions said to be of relevance came to be referred to first in the suspension letter, and then in the termination letter.  I shall not repeat them.

THE REASON FOR TERMINATION

282                      In my judgment, Ms Poniatowska was not dismissed for the reasons stated in the termination letter.  I also find, for the reasons indicated, that none of the first warning letter, the second warning letter, the third warning letter or the suspension letter set out accurately matters about which her employer was satisfied that she had conducted herself in her employment so as to warrant the giving of those letters.  Put bluntly, I find that none of those warning letters, or the suspension or termination of her employment, were for her poor work performance.

283                      I find that there was a different, but consistent, motivation for those communications.  It was to set the scene for the termination of, and ultimately to terminate, Ms Poniatowska’s employment because she had, over a period of time, revealed by what she had done in relation to the May 2005 allegations, the June 2005 allegations and the Lotito allegations, a sensitivity to the conduct of the type to which those allegations related.

284                      I appreciate the significance of that finding.  Although the onus of proof is upon the balance of probabilities: Qantas Airways Limited v Gama (2008) 247 ALR 273 at [110] and [123]-[139], I have been mindful of the serious nature of that conclusion and of the findings of fact upon which it has been based, and of the serious consequences which may flow from that conclusion:  Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, Evidence Act 1995 (Cth), s 140.

285                      I have also carefully considered the contention advanced on behalf of the respondents (other than Mr Lotito) that the process undertaken by ESA leading to the termination of Ms Poniatowska’s employment itself demonstrates that there was a genuine disciplinary process ultimately reflected in a proper decision to terminate her employment for the stated reasons  That contention is emphasised by a serious of rhetorical questions: Why adopt such a detailed process?  Why give Ms Poniatowska the opportunity to improve her file management?  Why give the successive warnings?  Why suspend her employment rather than terminate it?  Why involve Mr Wright and Mr Daminato and Ms Sharrad?  Why allow Mr Cordeaux to attend the meeting on 21 February 2006 and to speak on her behalf?

286                      Those matters do have significance.  I have not overlooked them.  They are to be weighed in the overall picture, as I have done.  There are a few further matters that I should refer to.  After the time of the first warning letter, there is no evidence of a structured ongoing assessment of Ms Poniatowska’s file preparation and presentation.  It re-emerged only when Mr M Hickinbotham later asked about it.  If that topic was important, one would have expected some ongoing structured review of her performance.  Clearly, at the time of the first warning letter, the client complaints addressed in the second and third warning letters and in the suspension letter did not exist.  Those matters appear to have been adopted opportunistically, for the reasons I have given.  I do not know if other complaints were ever made about other building consultants, although I infer from the fact that Homes sometimes paid for extras “agreed” by a building consultant that they did arise.  I do not know how they were handled.  Those complaints required some investigation, but apart from the Pearson complaint that did not occur and indeed Mr M Hickinbotham demonstrated a closed mind to Ms Poniatowska’s response to them.  When Mr Wright was asked to investigate the complaint from the Pearsons, he did so quite inadequately.  Ms Poniatowska did not react to any of those communications, or to them collectively, by resigning.  The considerations as the respondents (other than Mr Lotito) have put forward have been carefully considered.  I have nevertheless reached the firm conclusion which I have expressed.

CONSIDERATION

287                      The primary case argued for Ms Poniatowska is that “there is a causal connection between the termination of her employment and the sexual discrimination consequent upon the applicant raising sexual harassment and the failure of the employer to properly address it”.  The contention then runs that the termination of her employment was the culmination of a continuing course of conduct, constituting failure to support her in the face of sexual harassment by the way it addressed the instances of sexual harassment reported to the employer ESA, and by a deliberate decision by ESA to terminate her employment because she had made the complaints of sexual harassment referred to.

288                      It is first necessary to consider whether any of the May 2005 allegations, the June 2005 allegations or the Lotito allegations (all of which I have found to have been established) amounted to sexual harassment.  The relevant definition is in s 28A of the SD Act, set out above.

289                      In my view, the conduct of Mr Flynn constituted by the May 2005 allegations amounted to sexual harassment.  He clearly made a request for sexual favours to Ms Poniatowska by his emails of 8 May 2005 and 10 May 2005 and by his subsequent SMS text messages.  Those requests were unwelcome on the part of Ms Poniatowska: see Aldridge v Booth (1988) 80 ALR 1.  It is not necessary to find whether the email of 8 May 2005 was made in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that Ms Poniatowska would be offended, humiliated or intimidated by it.  That is because, in the light of her response to the first email, I find that the subsequent communications referred to, starting with the email of 10 May 2005, were made in circumstances in which a reasonable person, having regard to all the circumstances including the terms of Ms Poniatowska’s response, would have anticipated that she would be offended and humiliated by them.  She had clearly indicated that she did not wish to receive requests for sexual favours from him.  Mr Flynn nevertheless persisted to make such requests in the manner I have found.  Having indicated her attitude quite clearly, it was apparent, and a reasonable person would have anticipated, that Ms Poniatowska would be offended if the requests were maintained (as they were).  It was also apparent, and a reasonable person would have anticipated, that she would be humiliated by such conduct because it conveys an understanding of the potential preparedness of Ms Poniatowska to have a sexual relationship with him, notwithstanding her clearly expressed attitude to the contrary.  Even if Mr Flynn did not see the situation that way, and was nevertheless hopeful of establishing a sexual relationship, that does not result in a different conclusion.  The test in s 28A is clearly an objective one: see generally Leslie v Graham [2002] FCA 32 at [70].

290                      After careful consideration, I do not consider that Ms Sharrad’s remarks in relation to the June 2005 allegations fall within s 28A(1)(b) of the SD Act.  It is necessary to consider whether they amount to unwelcome conduct of a sexual nature and as defined in s 28A(2) of the SD Act as a statement of a sexual nature orally made to Ms Poniatowska.  That conduct was clearly unwelcome to Ms Poniatowska.  Clearly, s 28A(1)(d) is not engaged.

291                      It is one of Ms Poniatowska’s contentions that her employer should have had a sexual harassment and a sex discrimination policy, which should have included a process for the reporting and investigation and dealing with complaints of sexual harassment and sex discrimination.  One element of such a policy might well be that, when building consultants are working together, no employee should approach another employee for a sexual relationship.  Obviously, it would not offend s 28A to have such a policy or to convey it to employees.  It would also not offend s 28A for a particular employee to be informed of or reminded of that policy, without more, whether for precautionary purposes or for reassurance.

292                      As I have noted, there was no such formal policy.  However, the ad hoc policy enunciated by Ms Sharrad in the circumstances would, in my view, fall within the same general scope.  It would not of itself fall within s 28A.

293                      There are two distinguishing or additional features of Ms Sharrad’s remark which require consideration.  The first is the language used.  It was coarse.  In the particular circumstances, it was inappropriately coarse when addressing Ms Poniatowska, as Ms Sharrad acknowledged.  However, the communication of such a “policy” or instruction to Ms Poniatowska was nevertheless intended to operate as a reassurance.  The use of coarse and sexually explicit language of itself does not convert the communication of a policy or instruction into conduct of a sexual nature.  The second is the circumstances in which the communication is made.  On Ms Poniatowska’s evidence, as I have accepted, it was made to her in the presence of other building consultants.  There may be circumstances where, assessed overall, the making of a statement such as that made in front of a group by Ms Sharrad might amount to conduct of a sexual nature.  However, even though the making of the statement embarrassed her because it was made in the presence of others, I do not consider that Ms Sharrad’s conduct was of a sexual nature.  It was her way, albeit an inappropriate way, of conveying the instruction she had given to Mr Lotito.  It was generic, in the sense that the information related to how he should treat, or not treat, all the female building consultants.  It was conveyed to Ms Poniatowska because she was about to work with Mr Lotito and was diffident about doing so.  Ms Poniatowska was embarrassed and humiliated because she thought it conveyed that she might be liable to engage in such conduct with Mr Lotito, or that she had in the past engaged in such conduct with him or other employees, or might do so in the future.

294                      The term “conduct of a sexual nature” is not defined other than inclusively in the SD Act.  The content of the term “of a sexual nature” must take its meaning from its context.  Its context includes s 28A(1)(a), referring to sexual advances or requests for sexual favours.  Section 28A(1)(b) and (2) is intended to extend the circumstances of sexual harassment beyond the scope of s 28A(1)(a), but I think it involves some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour.  It is not necessary or appropriate to set the outer bounds of “conduct of a sexual nature”.  It does not, in my view, extend to encompass the conveying of an instruction given to another employee not to engage in sexual harassment, even if the message is conveyed in coarse and sexually explicit language.

295                      Clearly enough, as evidenced by Ms Sharrad’s apology, the conduct offended Ms Poniatowska.  That was, I find, because she was treated as a person to whom coarse and sexually explicit language could be used.  A reasonable person, in all the circumstances (including a generic awareness of a robust work place) would have anticipated that she would be offended and perhaps humiliated by being seen as a person to whom such coarse language could be used.

296                      However, I do not find that the June 2005 allegations amounted to sexual harassment.

297                      I have reached that view with some hesitation.  The context, namely the making of the statement to Ms Poniatowska in the public space of the head office and directed to her when she was (as the roster showed) assigned to work with Mr Lotito, could suggest to a reasonable person that Ms Poniatowska might be a person disposed to engage in a sexual relationship with Mr Lotito through working with him.  The conduct of Ms Sharrad then might amount to unwelcome conduct of a sexual nature, by the implication it conveyed about her sexual behaviour.  Ultimately, I have not taken that step.

298                      It is clear, on the other hand, that the conduct constituting the Lotito allegations did amount to sexual harassment.  They were unwelcome sexual advances and unwelcome requests for sexual favours.  The lewdness of the MMS photograph, even without any implicit invitation for sexual favours, would amount to conduct of a sexual nature.  The conduct was unwelcome.  I also find that in the circumstances a reasonable person, having regard to all the circumstances, would have anticipated that Ms Poniatowska would be offended and humiliated by that conduct.

299                      I will address the consequences of the sexual harassment constituted by the May 2005 allegations and the Lotito allegations when I turn to the question of relief.  I should, however, make it clear that Ms Poniatowska did not contend, and I do not find, that either of those instances of sexual harassment directly caused the termination of her employment.

300                      Section 28B(1) makes it unlawful for a person to sexually harass an employee of that person.  As noted above at [40], s 106(1)(b) of the SD Act makes the conduct of Mr Flynn and Mr Lotito the conduct of ESA if their respective conduct was “in connection with” their employment.

301                      The submission of Ms Poniatowska is that the sexual harassment includes the “failure by the employer to act to prevent its occurrence, the suffering of a sexually hostile working environment, and the failure to quash it once it commenced”.

302                      I do not accept that contention.  What amounted to the “failure … to act” is not expanded upon in the submissions.  If that means a failure to have a formal policy against sexual harassment and to publicise it, I do not consider that of itself would fall within the concept of sexual harassment.  Section 28A(1)(a) would clearly not be engaged.  Nor could it be said that such a failure is itself “conduct of a sexual nature” so as to fall within s 28A(1)(b) and (2).  It must also be noted that s 28A(1) operates on conduct towards or in relation to the person harassed.  That is clear from the words used, together with the need for the object of the conduct to have treated it as unwelcome.  It contemplates specific conduct in relation to a specific person or persons (the person harassed).  Moreover, the absence of a formal policy, or the failure to properly or adequately promote awareness of a formal policy, dealing with sexual harassment is of a general nature and not directed to a particular person or persons.

303                      The “suffering of a sexually hostile working environment” is a loaded expression.  It was not given content in oral submissions.  I have found that the work environment was robust, in the sense I have explained it.  That involved the use of coarse language, sometimes (as much coarse language is) sexually explicit.  However, I have not otherwise been asked to find that the work environment was “sexually hostile” either in relation to women generally (the evidence of Ms Hopko, Mr Swan and Mr Read would not support that conclusion) or in relation to Ms Poniatowska in particular.  If that was the allegation of Ms Poniatowska, the evidence did not establish it except to the extent of the particular allegations I have found to have been made out and the way in which Homes responded to those allegations.  I address the question of its response separately. Beyond that, I do not accept the more general contention.

304                      The “failure to quash” sexual harassment once it commenced is also capable of a wide meaning, to an extent not covered by the evidence.  If the allegation is confined to the May 2005 allegations and the Lotito allegations, I do not consider that the “failure to quash” such conduct is made out as a relevant causative factor.  By the time Homes learnt of each of those categories of conduct, the conduct had ceased.  Even if no action was taken by Homes at all, having learnt of that conduct, its inactivity is not shown to have made any difference to the quashing of that particular conduct.

305                      In addition, for reasons already given, I do not consider in the circumstances that the way that Homes responded to the reports of that conduct (or to the report of the June 2005 allegations concerning Ms Sharrad) could itself amount to sexual harassment.  The way it reacted, inadequately as I have found, does not bring that conduct within the description of ss 28A(1)(a), s 28A(1)(b) or 28A(2).  It was not conduct of a sexual nature.

306                      That is not to say that its conduct in relation to those allegations may not separately give rise to sex discrimination, contrary to s 14(2) of the SD Act.

307                      However, for the reasons I have given, I do not consider that in respect of the three more general allegations made about the conduct of Homes, or in respect of the way it addressed each of the three allegations of sexual harassment which I have found to have been made out, it engaged in sexual harassment so as to contravene s 28B of the SD Act.

308                      Section 5 of the SD Act set out in [32] above, describes sex discrimination.  Section 14(2) set out in [33] above makes it unlawful for an employer to discriminate against an employee on the ground of that employee’s sex by dismissing that employee.

309                      Relevantly, s 5 provides that a person discriminates against another person on the ground of the sex of the aggrieved person if, by reason of the sex of the aggrieved person, the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person of the opposite sex.

310                      In my judgment, ESA has discriminated against Ms Poniatowska on the ground of her sex because, by reason of her sex, she was treated less favourably than it would have treated a male person in the same or not materially different circumstances.  It has, further contravened s 14(2)(c) of the SD Act by so discriminating against her by dismissing her.

311                      I have referred above to my findings about why Ms Poniatowska was given the three warning letters, the suspension letter, and ultimately the termination letter.  Homes from about May 2005 to August 2005 was confronted with a female who would not accept the behaviour of Mr Flynn and Mr Lotito, whose conduct amounted to sexual harassment, and of the robust work environment, as evidenced by the June 2005 allegations concerning Ms Sharrad.  The employer did not address her legitimate concerns.  In effect, apart from the inappropriate response to Ms Poniatowska along the lines of: “What do you expect with a face like yours”, it did nothing about Mr Flynn’s sexual harassment of her.  In the case of her complaint about Ms Sharrad, it took a considerable time to formally acknowledge and react to that conduct, and it did so only after it became aware of the Lotito allegations.  In the case of the Lotito allegations, it initially reacted promptly but then failed to investigate that conduct in any cogent way or to counsel or support Ms Poniatowska.  Eventually, again out of frustration and concern for her position, Ms Poniatowska wrote to withdraw that matter but it still required a further meeting at which, as I have observed, Ms Poniatowska was not treated as the victim of sexual harassment but as a problem to be dealt with.  I shall not reiterate my detailed findings.

312                      In my judgment, the employer then determined that she was a person who did not “fit” its work environment because she was a female who would not tolerate sexual harassment and the robust work environment.  I have found that the employer then gave her the three warning letters and the suspension letter as a means of setting the scene for the termination of her employment.  In those processes, as my findings indicate, she was treated differently from the way the employer would have treated a male person.  It is manifestly evident in the way Mr Flynn and Mr Lotito were treated in relation to their conduct towards Ms Poniatowska.  Again, I shall not repeat my earlier findings.  I find that the way Ms Poniatowska was treated was less favourable than, in circumstances that are the same or not materially different, her employer would have treated male persons.

313                      It is perhaps possible that some other female persons may have been exposed to sexual harassment in the workplace at Homes, and have tolerated it without complaint.  That is not to the point.  Ms Poniatowska was exposed to sexual harassment, and to sexually explicit language in circumstances she found quite discomforting.  She complained.  Instead of her complaints being addressed sympathetically, they were treated dismissively in two instances, and in the case of the Lotito allegations they were only superficially addressed and not sympathetically to the victim.  The legitimate complainant was, as I have found, then identified as a person who it was desirable to terminate because she had confronted ESA with her complaints.

314                      Whilst no male persons are shown to have complained of sexual harassment or of exposure to discomforting sexually explicit language, clearly those engaging in the sexual harassment or the sexually explicit language were treated differently than Ms Poniatowska.  If a male employee had complained of sexual harassment or of discomforting sexually explicit language, how would ESA have treated that employee?  Necessarily, that question must be answered on a theoretical basis because there is no evidence of any such complaint by a male employee having been made.  I am satisfied quite firmly that, in that event, a male complainant would have been treated differently.  I reach that view partly based upon how the males who had engaged in sexual harassment were treated.  I also reach that view because I consider that the evidence overall shows ESA, through Mr M Hickinbotham, was unsympathetic to Ms Poniatowska’s complaints but was prepared to be much more sympathetic to the situation of Mr Lotito, and through Ms Sharrad was much more sympathetic to the situation both of Mr Flynn and Mr Lotito.  There is an underlying sense, and a strong one, that Ms Poniatowska as a complainant female was a potential ongoing impediment to the smooth functioning of the business of Homes and the better solution to her circumstances was that her employment should not continue; I do not consider on the whole of the evidence and my sense of the views of Mr M Hickinbotham in particular that ESA would have taken the same approach to a male employee complaining of such conduct.

315                      Consequently, I am satisfied that the conduct of ESA amounted to sex discrimination, and that it acted unlawfully in discriminating against her on the ground of her sex by dismissing her, contrary to s 14(2)(c) of the SD Act.

316                      She is entitled to relief, to be determined under s 46PO(4) of the HREOC Act.

IMPLIED TERM OF TRUST AND CONFIDENCE

317                      Ms Poniatowska asserts that her contract of employment contained a term implied by law that ESA and Homes would not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between them and Ms Poniatowska (the implied term). She says that either individually or in conjunction, the conduct the subject of the April 2005 allegations, the May 2005 allegations, the June 2005 allegations, the Lotito allegations, the August 2005 allegations and the September 2005 allegations breached that implied term. Ms Poniatowska further contends that her suspension on 9 February 2006 was also in breach of the implied term.

318                      She alleges that as a consequence of those breaches of the implied term, either alone or in conjunction with the alleged unlawful discrimination, she lost her employment and suffered loss and injury, including the development of a psychiatric condition in the nature of depression, and has been unable to return to gainful employment save for a short period since the termination, and remains incapacitated for work.

319                      The cause of action predicates the existence of a duty of mutual trust and confidence, to be implied into Ms Poniatowska’s contract of employment. Ms Poniatowska referred to a series of Australian authorities purportedly accepting the existence of such an implied term: McDonald v State of South Australia [2008] SASC 134; Delooze v Healey [2007] WASCA 157; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; and Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104. Since the hearing, an appeal has been decided in respect of the latter matter: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217.

320                      In a recent decision of Tracey J, Van Efferen v CMA Corporation Limited [2009] FCA 597, his Honour noted at [80] that the question of whether such terms may be implied in contracts of employment is one of controversy on which the High Court has yet to make a definitive pronouncement. His Honour reviewed the authorities and made the following observations at [83]-[85]:

In this Court single judges have adopted a more guarded approach. In McDonald (at 398-400) Buchanan J reviewed the authorities relating to the mutual trust and confidence term. He expressed disquiet about the notion that such a term could have escaped judicial notice for so long. More significantly he queried whether such a term could be implied consistently with the principles expounded by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. I respectfully share his Honour’s reservations.

In Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114 at 156-157 Kenny J held that, in Australia, a term of good faith “does not apply to employment contracts”. On appeal the Full Court did not need to express a view on her Honour’s finding: see Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687 at 708 [86].

As a single judge I would follow the decisions of other single judges unless I considered them to be clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. Although Buchanan J’s observations in McDonald were obiter I nonetheless consider them to be correct. Kenny J’s ruling in Walker forms part of the ratio of her decision in that case. I do not consider either decision to be clearly wrong. Had it been necessary I would have followed them.

321                      As I have found that ESA discriminated against Ms Poniatowska on the ground of her sex, and contravened s 14(2)(c) of the SD Act by so discriminating against her by dismissing her, I do not need to decide whether, in the circumstances, a term of mutual trust and confidence ought be implied into Ms Poniatowska’s employment contract.  Such a finding would not add to the range of remedies or the extent of the compensation awarded.  In those circumstances, it is appropriate simply to note the observations of Tracey J in Van Efferen v CMA Corporation Limited [2009] FCA 597.

THE ASSESSMENT OF DAMAGES

322                      It is now necessary to consider the appropriate award of damages or other relief to be granted to Ms Poniatowska.

323                      In her application, she seeks the giving of an apology or apologies from those respondents against whom adverse findings have been made. 

324                      I do not propose to direct that any apology should be ordered against any respondent in the particular circumstances.  Ms Poniatowska has already received an apology from Ms Sharrad in respect of the June 2005 allegations, and from Mr Lotito in respect of the Lotito allegations.  Although I have made adverse findings against the respondents other than Mr A Hickinbotham and Homes, in my discretion under s 46PO(4) of the HREOC Act, I do not propose to order that any further apology be given.

325                      There are a number of reasons for that.  In the first place, in my view, the adverse findings made against the respondents in respect of the conduct concerning them individually is sufficient recognition for Ms Poniatowska of the inappropriateness of that conduct.  The imposition upon those respondents, who variously denied the conduct specifically attributed to them or in some respects denied its significance, would put them in the position of requiring them to apologise for conduct which they did not accept that they had severally engaged in: see for instance the observations of Branson J in Jones v Toben (2002) 71 ALD 629 at [106]; Jones v The Bible Believers’ Church [2007] FCA 55 at [65]. 

326                      In concluding submissions, senior counsel for Ms Poniatowska did not strenuously urge that an order should now be made requiring an apology, or a further apology, from any of the respondents.

327                      Principally, the claimed relief is monetary compensation for the conduct which has been engaged in.  Such relief may be granted, following my satisfaction of unlawful discrimination on the part of the respondents identified, contrary to s 46PO(4)(d) of the HREOC Act, involving sex discrimination and sexual harassment contrary to the SD Act.

328                      In the light of my findings, that is an appropriate form of relief for the unlawful discrimination which has occurred.

329                      It is necessary to explain why the compensation to be ordered is confined to an order against ESA in the first place.  In the submissions both on behalf of Ms Poniatowska, and on behalf of the respondents (other than Mr Lotito), no proposition was put forward that separately compensation should be awarded against Mr Flynn concerning the May 2005 allegations, or against Ms Sharrad concerning the June 2005 allegations, or against Mr Lotito concerning the Lotito allegations.  Indeed, in the light of my findings, it is only the May 2005 allegations and the Lotito allegations which amount to sexual harassment.  The balance of my findings relate to sex discrimination by ESA in conjunction with or through the conduct of its employees, particular Mr M Hickinbotham and Ms Sharrad.  I did not find the April 2005 allegations, the August 2005 allegations or the September 2005 allegations proved so there is no separate basis to make a separate award of compensation against Mr A Hickinbotham or Mr M Hickinbotham or Ms Sharrad (in relation to the August 2005 allegations).

330                      Because neither Ms Poniatowska nor the respondents (other than Mr Lotito) suggested that separate compensatory relief should be awarded against Mr Flynn or Mr Lotito (or possibly Ms Sharrad in respect of the June 2005 allegations), I do not propose separately to determine the nature and extent of any relief which I might otherwise have granted by way of compensation for their particular conduct.  In respect of the May 2005 allegations and the Lotito allegations, each of which I have found to have constituted sexual harassment, and therefore unlawful discrimination contrary to the HREOC Act, had specific submissions been directed to the appropriate form of relief for that particular conduct, I would have granted compensatory relief.  The evidence does not go so far as to suggest that, in the overall picture, either the conduct constituting the May 2005 allegations or the conduct constituting the Lotito allegations of itself, would have caused Ms Poniatowska to suffer significantly, or in particular would have caused her to lose her employment.  The award of damages would have been compensatory, without any element of economic loss.  It is unnecessary to go beyond that.

331                      It should be noted that none of the medical evidence specifically focused upon the particular consequences of the May 2005 allegations or the Lotito allegations, remote from the broader contextual picture which my findings present. 

332                      That may be why the broader approach to compensation has been taken on behalf of Ms Poniatowska.  It is her case that, to the extent that I have made findings adverse to the respondents in respect of the various allegations made by her, compositely they have led to significant pain and suffering and hurt and humiliation on her behalf, to a significant mental illness, and importantly to a significant impairment in her earning capacity.

333                      I accept Ms Poniatowska’s evidence that, following the May 2005 allegations and the way in which her complaint to Ms Sharrad was addressed, she was concerned and somewhat upset about the lack of responsiveness of the Hickinbotham Group to that conduct.  There is no evidence to suggest that such conduct had any dramatic adverse impact upon her, either in the short term or, by itself, in the longer term.  However, in my view, the June 2005 allegations, and then not long afterwards the Lotito allegations, and the way in which those allegations were addressed by ESA through Mr M Hickinbotham are significant.  I accept Ms Poniatowska’s evidence that the response of Ms Sharrad, when Ms Poniatowska expressed to her some concern about being assigned to work with Mr Lotito, was made in a public environment in a robust setting.  I accept that Ms Poniatowska thereby felt embarrassed and humiliated because she felt that the reaction of Ms Sharrad in what she said and how she said it amounted to some suggestion that she had a propensity at least to participate in or to be attracted to such conduct in the workplace.  I have also found that Ms Poniatowska believes that she became the object of snide commentary by other building consultants whilst at the head office.  Whether her belief is correct is not a matter about which I am able to make a finding.  I do not assume that such conduct was engaged in by other building consultants.  However, that is not inconsistent with accepting Ms Poniatowska’s evidence, as I do, that that was the perception she had subsequent to those events about the attitude of her co-workers when they were together in the workplace.  I therefore accept that she felt embarrassed and humiliated, and somewhat isolated in the workplace, following those events and that she thereby felt distressed and upset.  I do not need to repeat my findings as to how events in relation to those allegations evolved, more particularly how they were addressed by the Hickinbotham Group in the period June to August 2005.

334                      I do accept that her sensitivity persisted through the latter months of 2005 up to and after, the first warning letter.

335                      Following the first warning letter, and her sense of unfairness and victimisation which by then she had developed, her condition worsened.  I accept her evidence that she became very agitated following the first warning letter, not because of its correctness but because of its content in the context of what she regarded as victimisation.  I have found that it was an unwarranted warning letter, as were the subsequent warning letters and the suspension letter, and were directed towards setting the scene for her employment to be terminated ostensibly for reasons of work performance but actually because of her attitude to certain types of conduct in the workplace. 

336                      I find that from December 2005 or thereabouts, by reason of the sensitivity and embarrassment she felt in the workplace, and the further (warranted) sense of victimisation following the first warning letter, she suffered more significant symptoms of feeling depressed, insomnia, dizziness, some difficulty in concentration, shortness of breath and palpitations, anxiety, and some loss of motivation.  Those symptoms, of course, did not all present at once but presented over a period of time the next month or two so that she saw her general practitioner in January 2006.  In February 2006, she again saw her general practitioner (by that time Dr Ekanayake) when she was very depressed and crying and sleeping poorly.  She was prescribed anti-depressant medication at that time.  Following her termination of her employment, as I have noted, she brought a claim for unfair dismissal in the Industrial Relations Commission of South Australia in March of 2006.  Her evidence was that she withdrew that claim on 10 May 2006 when she had secured alternative employment as a building consultant with another building company, and because she felt much more stressed in the context of that claim.  She commenced work with that building consultant on 22 May 2006 and remained in its employment until September 2006 when she stopped working for it.  She reported to that employer that she was ceasing work for family reasons, but she said (and I accept) that it was because she did not feel able to cope with that work with the ongoing symptoms which she was experiencing.

337                      In fact, in August 2006 she was referred to a specialist psychiatrist, Dr Jha for assessment and treatment of depression and anxiety, and he subsequently saw her in September 2006 and supervised her ongoing medication for those conditions, as well as prescribing a sedative to help her to sleep.  Her condition persisted.

338                      In February 2007, she was referred by Dr Ekanayake to another consultant psychiatrist, Dr Czechowicz.  He also diagnosed anxiety and depression with an adjustment disorder.  Over the period of subsequent consultations, he observed features of post traumatic stress disorder, the relevant trauma having been what occurred during her employment with ESA and how she was treated in relation to what had occurred to her.

339                      I shall refer to the significance of the specialist medical evidence shortly.

340                      In April 2007, Ms Poniatowska was also referred to a psychologist, Ms Dowling for psychological assessment and treatment in relation to her condition.  That was appropriate, according to the views of Dr Czechowicz.  Ms Dowling also diagnosed her with acute distress and an anxiety disorder with mixed anxiety and depression.  She too has continued to consult Ms Poniatowska from time to time thereafter.

341                      In about mid to late 2007, Ms Poniatowska had a trip to Poland to see her relatives.  She was clearly able to manage that trip.

342                      Nevertheless, she continued to experience the symptoms referred to and to receive the treatment referred to.  She did not sit idly by.  In 2006, she also commenced studying a law degree.  In that year, she successfully completed one of the two units which she undertook.  In 2007, whilst studying part-time, she completed successfully four of the four units which she then undertook, and in 2008 she completed two of the three units which she undertook.  She found studying difficult because of a reluctance to mix in a concentrated social environment, such as a public lecture.  She remained withdrawn and was able to receive many of her lectures online.  I assume she is continuing studying towards that degree.  I will make findings below as to her future prospects of completing it, and more generally in relation to her incapacity.

343                      Her medical assessment and management has remained since 2007 with Dr Ekanayake, Dr Czechowicz and Ms Dowling. 

344                      The only other medical evidence called was from another specialist psychiatrist Dr Ewer.  He examined Ms Poniatowska at the request of the Hickinbotham Group on 6 May 2008 and provided a report of that day concerning her condition, and a supplementary report responding to certain questions provided to him.

345                      Dr Ewer’s evidence put a somewhat different perspective upon Ms Poniatowska’s condition.  He diagnosed a major depressive disorder, but he had concerns about her reliability as an historian, and considered that her condition included significant paranoid ideation.  He nevertheless agreed with the form of treatment prescribed by Dr Czechowicz.  He quite legitimately pointed out that the reliability of Ms Poniatowska as a reporter of the events to which she attributed the development of her symptoms was critical.  He did not presume to make a determination as to her reliability, other than to note that on certain testing there was some indication of symptom magnification.  He recognised that, if the more significant allegations she made were correct, then her major depressive disorder could flow from her employment and the way she had been treated in her employment.  If it were not, (over-simplifying his evidence), then her major depressive disorder could result from her employment only in the sense that she did not accept the reliability of or the justification for the several warning letters and termination letter, and so has reacted adversely to them, even though the foundation for those letters was an appropriate one.  In that event, she has some paranoid and false ideation about the foundation for them.

346                      My findings indicate that, in large measure, the foundation for her depressive disorder is one warranted in fact.  Having taken that step, there is little disagreement then between Dr Ewer and Dr Czechowicz.

347                      Because Dr Ewer expressed his views provisionally, depending upon the assessment made of Ms Poniatowska as a reliable historian, and because ultimately I have largely accepted her evidence in relevant respects as reliable, I prefer the evidence of Dr Czechowicz to the extent that it disagrees with the evidence of Dr Ewer.  However, it does not dramatically differ.

348                      It should, however, be observed lest it be thought that I have overlooked it, that I have not accepted all of Ms Poniatowska’s evidence and I have in fact rejected certain of the claims she made, in particular concerning the April 2005 allegations, the August 2005 allegations, and the September 2005 allegations concerning respectively Mr A Hickinbotham, Ms Sharrad and Mr M Hickinbotham.  I have been conscious of those findings, and of their significance in terms of assessing the reliability of Ms Poniatowska in all respects of her claim throughout.  However, for the reasons I have given, I have largely accepted her evidence.

349                      In the light of the findings I have made as to what transpired whilst Ms Poniatowska was employed by ESA, the medical evidence to which I have referred indicates that from late 2005 or thereabouts Ms Poniatowska developed depression and anxiety, from which she has continued to suffer quite significant symptoms since that time, perhaps somewhat eased as a result of treatment.  I find that the unlawful discrimination of ESA has caused those conditions and their consequences.

350                      On the basis of the evidence, I find that she has since early 2006 at least suffered from an adjustment disorder with mixed anxiety and depression as a result of the unlawful discrimination of ESA.  It has been a severe depression.  I do not need to find whether she has suffered post traumatic stress disorder in addition, as any symptoms in relation to it (if she suffers from that condition) have been of a similar nature to those suffered from the other conditions, and the future for her is no worse by any additional diagnosis of post traumatic stress disorder than from her primary conditions.  I also find that those conditions are caused by the conduct of the Hickinbotham Group in the way I have described above, that is by its sex discrimination and therefore by its unlawful discrimination.

351                      The future for Ms Poniatowska is not a bleak one.  Although I accept that she was unable to work in the building industry as a building consultant, at least from about September 2006 when she ceased work, and has been substantially disadvantaged by depression and anxiety since that time, she has not been bedridden or greatly disabled.  In her day to day life she has continued to manage competently.  She has continued to bring up her children, albeit she says perhaps with some more difficulty and with less communication ideally than would be the case.  She has attended to her personal needs, the shopping, the maintenance of the house for the family and herself, and she has gone out from time to time on social occasions.  She has had a trip to Poland.  She has been able to study a law degree, or units of a law degree, albeit part-time and albeit with the difficulty to which I have referred. 

352                      The evidence is that the persistence of litigation is an impediment to her progress, and to what on all medical accounts is her likely full recovery.  The evidence is that there is a range of periods over which she is likely to recover.  It ranges from about six months to about two years, when she is likely to be able to return to full-time work.  Clearly, the resolution of this case will remove an impediment to her medical progress.  I find that upon the resolution of this case, she is likely to progressively improve in her condition to the point where, at the expiration of about one to two years, she is likely to be able to return pretty much to any form of work.  Over that time, if she chooses, she will be able to progressively increase her capacity to study, and to mix socially with other students or to attend lectures in public more comfortably, and so to improve her capacity to study.  She may choose to work in the meantime part-time, or she may choose over time to cease studying and to seek alternative employment.  She has clearly demonstrated a sufficient intellectual ability to be able to complete that further degree if she chooses. 

353                      In my judgment, allowing for what is now some years of quite considerable personal distress and unhappiness caused by her underlying psychiatric condition brought on by the circumstances to which I have referred, it is appropriate to make a not insignificant award of damages by way of compensation.  In my view, an appropriate amount to reflect both the past and the future disadvantage for pain and suffering which she has experienced and will experience until her recovery is in the order of $90,000.  I have made an allowance for the risk for ongoing but diminishing symptoms for some time after the expiration of two years.

354                      I also find that to a large measure Ms Poniatowska has been unable to work for the period from September 2006 to the present time.  Her earnings with ESA over the period of some 11 months (although she probably did not work profitably for much of January and February 2006), including her superannuation, were about $82,000.  The evidence indicates that she incurred expenses somewhat in excess of 10% of her earnings by having to provide her own car and telephone in that employment.  Those earnings, because of the timing of the completion of the contract which she arranged, were spread over the period from January 2005 to May 2006, so I should also make some allowance for the delayed receipt of income.  Had she maintained employment with ESA, however, a steady stream of not insignificant income would have been maintained.  In the four or more months she worked for the other building consultant, her income was in the order of nearly $18,000.  There is other evidence as to Ms Hopko’s earnings in years subsequent to 2005 when she became a more experienced building consultant.  They are not insignificant.  I also slightly reduce the amount which I would otherwise order for past loss of earning capacity to reflect the fact that Ms Poniatowska in, my view, may have been able to undertake some but not much part-time work over the last few years had she chosen to do so instead of studying. 

355                      Doing the best I can, on the limited information which has been available, in my view an appropriate allowance for past loss of earning capacity, after making a reduction for the expenses she would have incurred in earning it relating to a car and phone, would be in the order of $200,000.

356                      As I have found, she is likely to recover significantly over the next two years to the point where she is able to work in an unrestricted way, albeit with some risk of ongoing impairment, after that time.  There is a prospect of her being able to return to work in an earning capacity significantly prior to that date.  There is also a prospect of her recovery being somewhat delayed to a full recovery.  In my view, the appropriate allowance for future loss of earning capacity in the circumstances should be $140,000. 

357                      In addition to those factors, it is appropriate to make a small allowance for future medical expenses.  On the evidence, she will need to see Ms Dowling regularly for some time, Dr Czechowicz from time to time, and Dr Ekanayake.  She will incur ongoing medication expenses, although they are relatively slight.  The evidence about them is minimal.  I allow a sum of $3000 for all aspects of her future medical expenses.  No past medical expenses were proved.  I do not include an allowance for them.

358                      The total of those amounts is $433,000.  In my view, stepping back and considering the consequences of the unlawful discrimination of the Hickinbotham Group towards Ms Poniatowska, and her prospects in the future based on the medical evidence, that is a not inappropriate figure for compensation for the unlawful discrimination overall.

359                      For the reasons I have given, I will not separately make orders against Mr Flynn or Mr Lotito or Ms Sharrad or Mr M Hickinbotham.  The appropriate orders should be made primarily against ESA.  In the event that that amount is not paid by ESA, for whatever reason, I will reserve liberty to Ms Poniatowska to apply for orders to be made, to the extent that it is appropriate, against each of the other respondents (other than Homes). 

360                      It is also appropriate to make some allowance for interest on that compensation from time to time.  The past economic loss is, of course, an accumulating amount as indeed is the way in which the amount for past non-economic loss has been determined.  Doing the best I can on the limited material, I propose to allow a figure of $30,000 for interest to be included in that compensation figure.

361                      I do not make an order for exemplary or aggravated damages.  Neither of those claims were made in the application itself.  To an extent, the conduct which I have found to have contravened the SD Act, and consequently to have been unlawful discrimination contrary to the HREOC Act, was partly as a result of the inadequacy of systems for managing complaints of sex discrimination or sexual harassment in the workplace on the part of ESA, and perhaps an inappropriately robust work environment.  It is only at the point of the reasons for Ms Poniatowska’s termination that, in my view, such a prospect of deliberately inappropriate conduct was undertaken by ESA.  In that regard, however, without the benefit of detailed submissions seeking to refine the basis upon which such damages might be quantified, and isolated from the other forms of conduct which underlay and gave rise to the desired termination of her employment, I am not prepared to make such a determination.

ORDERS

362                      I have recorded my findings that:

(1)      by reason of the conduct constituting the May 2005 allegations, Mr Flynn engaged in sexual harassment, contrary to s 28B of the SD Act;

(2)      by reason of the conduct constituting the Lotito allegations, Mr Lotito engaged in sexual harassment, contrary to s 28B of the SD Act; and

(3)      by reason of the conduct engaged in by ESA leading to the termination of Ms Poniatowska’s employment, ESA engaged in sex discrimination contrary to s 14(2) of the SD Act and unlawful discrimination contrary to s 46PO of the HREOC Act.

363                      In final submissions, I was not asked to make any particular orders against Mr Flynn or Mr Lotito.  I do not consider that there is a need to make any orders against ESA other than for the amount of the compensation I have determined.  There will be an order that ESA pay to Ms Poniatowska by way of compensation for the unlawful discrimination in which it has engaged, the sum of $466,000 including interest.

364                      I order ESA to pay to Ms Poniatowska her costs of the application.  I will give leave to Ms Poniatowska or to ESA to apply for an order that the compensation so ordered, or some part of it, be paid by some one or more of the other respondents.  I will also give leave to ESA to apply to have some part of the costs ordered against it to be paid by some one or more of the other respondents.

 

I certify that the preceding three hundred and sixty-four (364) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:         23 June 2009

Counsel for the Applicant:	P Heywood Smith QC with A Pridmore
Solicitor for the Applicant:	Duncan Basheer Hannon
Counsel for the First to Fourth and Sixth to Seventh Respondents:	A Gotting
Solicitor for the First to Fourth and Sixth to Seventh Respondents:	EMA Legal
Counsel for the Fifth Respondent:	The fifth respondent appeared in person

Date of Hearing:	16, 17, 18, 19, 20 June 2008 1, 2, 3, 4 July 2008 5, 6, 7, 8 August 2008 1, 2 September 2008
Date of Judgment:	23 June 2009