FEDERAL COURT OF AUSTRALIA
Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784
ORDERS
Applicant | ||
AND: | INGHAMS ENTERPRISES PTY LTD ABN 20 008 447 345 First Respondent MICHAEL RAFFERTY Second Respondent BRENDEN WALDOCK (and others named in the Schedule) Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant’s oral application of 30 August 2019, to dispense with the notice requirement in s 97(1)(a) and s 98(1)(a) of the Evidence Act 1995 (Cth), be granted.
2. The originating application filed on 14 July 2017 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
1 Before the Court is a claim of discrimination under the Sex Discrimination Act 1984 (Cth) (SD Act) pursuant to the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The applicant (Mr Ford) lodged a complaint with the Australian Human Rights Commission (AHRC) on 6 October 2016. The complaint to the AHRC was unresolved and accordingly terminated by a delegate of the President of the AHRC pursuant to s 46PH(1)(i) of the AHRC Act.
2 On 14 July 2017 Mr Ford filed an originating application in which he alleged that the second to fifth respondents sexually harassed him, for which Inghams Enterprises Pty Ltd (Inghams), the first respondent, was vicariously liable. Mr Ford seeks an apology from each of the respondents, and compensation in the amount of $1,491,600.
3 The respondents submitted that the applicant’s case has not been substantiated and denied that much of the conduct alleged by Mr Ford occurred. The respondents sought the dismissal of the originating application and for the parties to be heard on costs.
4 In his statement of claim filed 29 September 2017, Mr Ford sought relief in the form of imposition of penalties on the first, sixth and seventh respondents pursuant to s 94(1) of the SD Act.
5 An amended statement of claim (amending dates and facts) was filed on 4 June 2018.
6 The trial commenced before me on 23 July 2019. The trial was conducted over 13 days, and 27 witnesses gave evidence orally. The evidence of some witnesses was lengthy. Mr Ford gave evidence over three days.
7 A further amended statement of claim was filed on 24 July 2019, which further amended dates in the amended statement of claim.
8 A redacted version of the further amended statement of claim (RFASOC) was filed by the applicant on 8 August 2019. It is convenient to have regard to the RFASOC for the purpose of the claims of Mr Ford, as it is this document on which Mr Ford relies.
BACKGROUND
9 The applicant and respondents filed statements of agreed facts on 22 December 2017 and 18 October 2019. Some of the following background derives from those agreed facts.
10 At the time of the hearing Mr Ford was approximately 49 years of age.
11 Inghams is an integrated poultry producer that supplies retail, restaurants and food service customers. The operations of Inghams includes seven primary processing facilities, five further processing facilities relating to cooked product, six distribution centres, eight hatcheries, over 250 farms and eight feedmills.
12 Mr Ford worked at the Inghams chicken processing factory in Murarrie in Brisbane from 6 February 2015 until September 2016. Mr Ford performed the duties of process worker, machine operator and forklift driver during his employment. At all times during his employment, Mr Ford worked afternoon shifts.
13 The respondents submitted that immediately prior to commencing employment with Inghams on or about 2 February 2015, Mr Ford completed training in accordance with Inghams’ detailed policy suite, including policies concerning inappropriate workplace behaviour (such as discrimination, harassment and bullying). The respondents submitted that Mr Ford could not have commenced employment with them without completing this mandatory training. Mr Ford deposed that he recalled undertaking an induction day with Inghams, but could not recall undertaking training despite his signature being on the relevant training competency questionnaire (transcript p 87 ll 3-45).
14 I am satisfied that Mr Ford did complete the mandatory training claimed by Inghams referable to, inter alia, inappropriate workplace behaviour, prior to commencing work with Inghams. In particular, prior to commencing his employment, Mr Ford completed:
A document entitled “Fitness for work assessment applicants questionnaire”; and
An online induction, which included the following modules: Work Health Safety & Injury Management; Animal Welfare Policy; WHS Access to Acts; Safety for Life WHS & Training Plan; Employee Induction/Questionnaire; Safety Rules; Environmental Awareness for Employees/Questionnaire; Environmental Policy; Employee Discrimination, Harassment & Bullying/Questionnaire; Employee Training PPE; Manual Handling Awareness/Questionnaire; Emergency & Evacuation Flip Chart; First Aid Register; Drugs and Alcohol Policy; and, Smoking Policy.
15 At material times, the Murarrie premises of Inghams included the following areas:
the Red Area, being the live bird processing section (so-called because workers wore red clothes while working there), which comprised of:
(a) the loading dock;
(b) the hanging room, comprised of two lines;
(c) the feather room production area in which process workers would perform duties such as plucking feathers, replacing plucker fingers (which were rubber accoutrements used in chicken plucking machines) and checking machinery; and
(d) a locker room, where employees could get changed before or after work, and could spend time during work breaks;
a staff carpark (at least for the period of February 2015 to September 2016); and
an area of land contiguous to the security gate accessed from the staff carpark, in which there was a picnic table.
16 Whilst employed with Inghams, Mr Ford worked in the Red Area with fellow Inghams employees Mr Michael Rafferty (the second respondent), Mr Brenden Waldock (the third respondent), Mr Wade Phillips (the fourth respondent), and Mr George Mole (the fifth respondent). Materially:
Mr Rafferty was employed as a process worker at Inghams from 23 August 2008 until 23 September 2016. During his employment he performed overtime in the feather room.
Mr Waldock was employed as a process worker at Inghams on 5 January 2005, and remained employed by Inghams at the time of the hearing. During the relevant period of time, Mr Waldock at times acted as a leading hand. He also performed overtime in the feather room.
Mr Phillips had been employed as a process worker for Inghams since about August 2007 and began an apprenticeship at Inghams in 2018. He remained employed by Inghams at the time of the hearing.
Mr Mole had been employed as a process worker by Inghams since 2012 and remained employed by Inghams at the time of the hearing.
17 During the period in which Mr Ford was employed by Inghams, the following employees also performed duties in or referable to the Red Area:
Mr Mark Chan, who was employed by Inghams from 2006 until May 2017. From November 2015 until September 2016, Mr Chan was Production Manager at the Murarrie facility.
Mr Anthony Collett, who had been employed as a process worker by Inghams since 26 July 2013 and remained employed by Inghams at the time of the hearing. Mr Collett also carried out duties as a forklift driver.
Mr Vaiyama Levaai Junior, who had been employed as a process worker by Inghams since April 2014 and remained employed by Inghams at the time of the hearing. Mr Levaai worked primarily in the hanging room and also carried out forklift duties.
Mr Bijo Varghese, who had been employed as a process worker by Inghams since 28 June 2014 and remained employed by Inghams at the time of the hearing. Mr Varghese worked primarily in the hanging room.
Mr Jason Flanders, who had been employed by Inghams in November 2003 and remained employed by Inghams at the time of the hearing. From February 2015 until September 2016, Mr Flanders was a leading hand in the Red Area.
Mr Kelvin Lucht, who was employed by Inghams from 2000 until April 2017. In the period from February 2015 until September 2016, Mr Lucht was a leading hand in the Red Area.
Mr Glenn Hannett, who was employed by Inghams from November 2003 until 14 July 2016. He was a supervisor in the Red Area from approximately February 2015 until July 2016. As part of his employment duties, Mr Hannett exercised supervisory functions in relation to Mr Ford and other employees who performed process worker duties in the Red Area.
Mr Saxena Johnson Junior, who was employed by Inghams from February 2009 until April 2017. Mr Johnson was a trainer in the Red Area in the period from February 2015 until July 2016 and an acting supervisor in the Red Area from July 2016.
Mr Edwin Okoro, who had been employed as a process worker by Inghams since October 2014 and remained employed by Inghams at the time of the hearing. He worked primarily in the hanging room.
Mr Sumandeep Dhanoa, who had been employed as a process worker by Inghams since November 2014 and remained employed by Inghams at the time of the hearing. Mr Dhanoa worked primarily in the hanging room.
Mr Jilali Rahiwi, who had been employed as a process worker by Inghams since June 2014 and remained employed by Inghams at the time of the hearing. Mr Rahiwi worked in the hanging and halal killing rooms.
Mr Sanan Ly, who had been employed as a process worker by Inghams since 2013 and remained employed by Inghams at the time of the hearing. He worked mainly in the hanging room and also performed duties in the feather room. At the time of the hearing he worked in the despatch area at Inghams.
Mr Kahu Ogg, who was employed by Inghams from 2008 until August 2018. Mr Ogg was a process worker in the Red Area, and worked on day shifts, but had previously worked the afternoon shift.
Mr Jatin Bhardwaj, who was employed by Inghams from 2012 until February 2016. Mr Bhardwaj worked as a process worker in the hanging room and the feather room on the afternoon shift.
18 From October 2015 Mr Ford regularly performed overtime work in the feather room, and forklift duties as required in the loading dock at Murarrie. I understand that feather room work and forklift duties were duties preferred by process worker employees.
19 Mr Ford became friendly with Mr Waldock and Mr Phillips, socialising with them on occasion outside of working hours.
20 In June 2015 Mr Ford made a complaint to Mr Hannett, alleging verbal harassment and abuse of him by Mr Mole. It is not in dispute that, as a result of the complaint made by Mr Ford, Mr Mole received a written warning from Inghams.
21 Until July 2016 Mr Ford’s supervisor at Inghams was Mr Hannett. After Mr Hannett left Inghams, Mr Johnson became Mr Ford’s supervisor. Mr Ford believed that this change in supervisor resulted in an increase in his being rostered on less-preferred hanging duties, and that the amount of overtime Mr Ford worked was reduced.
22 On or about 14 July 2016 Mr Ford was involved in a motor vehicle accident on the way to work where he sustained a shoulder injury.
23 In early August 2016 there was an incident involving the “locking out” of trucks at the Murarrie premises. The precise nature of this issue was described differently by witnesses, however the following facts appear uncontroversial:
it was a safety-related issue;
conduct of Mr Ford was involved;
Mr Rafferty reported this conduct of Mr Ford to Mr Johnson; and
Mr Ford’s conduct was considered to be a serious safety breach.
24 There was a disciplinary hearing at Inghams in relation to this incident, during which Mr Collett acted as a support person for Mr Ford. On 9 August 2016 Mr Ford received a final written warning in respect of the lock out incident, and was removed from forklift duties indefinitely. Relevantly, a form entitled “Record of Employee Discussion Form” provided:
Nature and Details of Issue or Alleged Offence/s (include dates, times, specific unsatisfactory work performance, behaviour and/or conduct)
On Monday 8-8-16 at about 16.35 I, Sax Johnson was out in LBR doing checks on trailers lock out procedure. Both Line 2 Trailers being loaded and unloaded were not lockout. I, Sax approached the forklift operator Richard Ford as to why both trailers Were unlocked while being loaded and unloaded. Richard Ford said that he taught [sic] trailers were locked. A written warning will be issue [sic] to Richard Ford for not following Standard Work Procedure (SWP XLBR 004). This is a serious safety breach.
25 A handwritten “employee’s response” was included. It is difficult to read, however I understand it was signed by Mr Ford. It appears to state:
I have read the offence and am happy to [accept] the [responsibility].
26 On or about 15 August 2016 Mr Ford reported to the work, health and safety team at Inghams that he was suffering pain to his shoulder while working. I understand that Mr Ford claimed that this shoulder pain was referable to his motor vehicle accident the previous month. Notes of Mr Ford’s report of shoulder pain were made by Ms Emma Hines, the senior work health and safety co-ordinator at Inghams Murarrie. Mr Ford was placed on light duties at Inghams until 29 August 2016. He then returned to normal duties in the hanging room, without overtime, as and from 30 August 2016.
27 On or about the night of 30 August 2016 Mr Ford posted comments on Mr Kahu Ogg’s Facebook page. At [363] of his redacted affidavit sworn 4 June 2018, Mr Ford said:
By that time, I was in a very poor mental and emotional state. I was very unstable. I was extremely angry. I started drinking. I put things on Facebook of which I am extremely ashamed. I said very unpleasant things. Some of the language was vengeful.
28 Mr Ford’s comments on Facebook were as follows:
• ‘Sooner or later shits going to hit the fan, can always find another job, put pain on, ill [sic] put pain on you and yours
• “just the way his wife is going to get it up the ass, hard as… tie the cunt up and make him watch!!”;
• “time to start facebook stalking, lol”;
• “Hope you read this to you pack of fucken ho mo cunts”; and
• “Yep, have to wait now for the investergating [sic]. Then wait for heads to roll and then compensation”.
29 Mr Ford gave evidence that the post was directed at Mr Johnson (transcript p 229 ll 22-30) and the comment “his wife is going to get it up the ass, hard…” was directed at Mr Johnson’s wife (see [367] of Mr Ford’s 4 June 2018 affidavit). At the hearing, Mr Ford deposed that he knew the Facebook posts would be shown to others at Inghams and that “it would annoy a lot of people” (transcript p 155 ll 30-31).
30 On 31 August 2016 Mr Ford had a discussion with members of the work, health and safety department about his inability to continue working that day due to his shoulder pain, which conversation is again recorded in the notes of Ms Hines. Mr Ford alleged that during this discussion, he also raised allegations of sexual harassment he had been experiencing.
31 On 1 September 2016 Mr Ford informed his wife Ms Hanner of alleged incidents of sexual harassment at Inghams. On or about 2 September 2016 Mr Ford spoke with Ms Hanner about the more serious incidents of sexual harassment to which he alleged he had been subjected.
32 On or about 2 September 2016 Mr Flanders brought Mr Ford’s Facebook posts to the attention of Mr Chan.
33 On Friday, 2 September 2016, Mr Ford made a verbal complaint to Mr Chan which included allegations of sexual harassment, in particular that he had been poked up the anus by co-workers. Mr Ford claimed that Mr Chan responded with words to the effect that the other workers had been doing a “John Hopoate” to Mr Ford. (I understand that this alleged reference was to a well-known finger-poking incident involving professional rugby league player John Hopoate.) Insofar as I can ascertain, including by reference to the transcript and Mr Chan’s affidavit, Mr Chan did not admit to having made this comment – rather he stated that he could not recall the conversation with Mr Ford (transcript pp 777-778).
34 Mr Ford also stated that Mr Chan was “uninterested” and “spoke more about my Facebook messages and was only concerned about that”. Mr Chan denied this, stating that he explained Inghams’ policy regarding inappropriate workplace behaviour, and mentioned that he was aware of a series of Facebook posts, but would discuss the issue with Mr Ford when he returned to work on Monday.
35 Mr Chan told Mr Ford that he could have the remainder of the day off work, and to return the following Monday to discuss the matter with him further. Mr Ford gave evidence that he was told to put his sexual harassment complaint in writing.
36 On 4 September 2016 Mr Ford attended a local doctor and complained of sexual harassment at his workplace.
37 On Monday, 5 September 2016, Mr Ford returned to Inghams at Murarrie to speak with Mr Chan. He gave Mr Chan two formal written complaints – one complaint making allegations of sexual harassment, and one making allegations of victimisation. Mr Ford stated that he provided the complaint of victimisation first to Mr Chan, who allegedly responded “is that it?” Mr Ford then left Mr Chan’s office, but shortly returned with a written complaint of sexual harassment.
38 The first complaint provided by Mr Ford to Mr Chan was as follows:
To whom it may concern,
I have been employed by Inghams since February 2015, I have always been a hardworking and reliable and took minimal days off. I have always been happy to do any job that was asked of me.
Because of that hard work and being so reliable although I started hanging I soon moved onto helping out on the forklifts and have been steadily in the feather room for the last 14 months. I also managed to get offered regular overtime during that time by always being available and ready to help when needed.
I started doing overtime in August of 2015 just filling in a couple of hours a week and the odd Saturday and by October of 2015 I was on the regular overtime shift averaging 5 hours or more a week, this continued until July of 2016.
When the current supervisor was in the process of taking over his current position I noticed that my overtime had started to reduce and on one occasion was told to go home instead of my regular overtime shift which is rotated with two other people, I asked if he wanted me to lock the knives etc away and he said no just go home! against my better judgement but as per his instructions they were left in the feather room and I went home.
Approximately a week before receiving a written warning an anonymous note was given to OH&S about concerns with the forklift drivers constantly on their phones while
working/driving. Assuming it was me there were massive changes in his attitude to me and felt like he had it in for me.
A week later I was given a written warning for not locking the truck lockout padlock, Not locking this happens on a regular basis by most employees that are responsible for it yet I was the only one that was given a written warning for it.
While I was in the office receiving the written warning I voiced my concerns about the forklift drivers that are constantly on their phones while driving and that the supervisor and leading hand both knew about it, the next week I was rostered on back in the hanging room. No one else had a change to their duties.
That week I was rostered on the forklift. I worked on the forklift on the Monday, Tuesday and Wednesday and then was on sick leave for the Thursday and Friday due to my shoulder which my supervisor knew, on the Friday I found out I was hanging on line 2 the following week, I approached the supervisor and let him know that I struggle with line 2 as this is the fastest line, I had not been hanging except for filling in for at least 12 months. He was hostile with me and told me that I was employed as process worker and that hanging was part of my job.
Due to a shoulder injury I was put on light duties for two weeks, once I was ready to go back to full duties it was advised by OH&S that it would not be recommended to hang for the first week, the supervisor had me back hanging within a day.
There had also been talk from the supervisor to the other workers that I had been faking my shoulder injury even though I had provided the full medical certificate showing that there was a tendon tear and fluid on the shoulder.
Knowing I had shoulder injury the supervisor lacked due care in placing me back in the hanging birds role as the average birds hung per day is approx. 65,000 over 7 stations making it approx. 9,285 birds hung in a shift with the bird averaging 3.5kg each so each station would lift approx. 26,000 kg in a shift.
There is always talk around the factory that if they want to get rid of someone they put them in the hanging room to break them and make them leave.
While I was on light duties I was in the feather room, once I had been cleared fit for full duties I saw the roster and I was in the feather room again I assumed this would be for the rest of the week as it normally would be. On the Tuesday a worker came back from leave that was fully fit and able and they took me out of the feather room to hanging and the other worker was put in the feather room.
Usually when people take time off from the feather room, forklift etc when they return they do not usually return to those duties for that week.
Since my return from light duties I have not been rostered on the forklift or the feather room while others have taken time off and even crashed the forklift and both have continued to be rostered in these roles.
I feel that because I'm not afraid to talk to the higher level bosses and tell the truth about what goes on in the red area I am being targeted and being singled out and victimised.
Last week with all the emotional stresses of the last few months the constant feeling of being targeted and them trying to push me out I did make inappropriate comments on facebook while talking with other workers, I am ashamed and regretful of the comments I made and it is completely out of character for me to make such comments, at the time I was venting and was at the end of my rope and was venting my frustration. These comments were made in the heat of the moment and shouldn't have not been made.
(Errors in original.)
39 The complaint relating to alleged sexual harassment was as follows:
To whom I may concern
Since I have been employed at Inghams I have witnessed inappropriate behaviour on a number of occasions, after approx. 6 months the behaviour was also directed at me, in the form of trying to force their fingers up my anus, grabbing my penis, dry humping (by two people, one on either side), patting on buttocks, hugging, rubbing their crutches on you, pretending to have anal sex if you bend over and pretending to perform oral sex.
There is a dysfunctional culture within the red area, you do not dob on your mates even if those so called mates are the ones doing the abusing for fear of reprisals. This culture has kept myself and others from reporting abuse for fear of being further abused and mistreated and has been covered up by senior staff.
Once I had been there for approx. 6mths and was integrating into the main group and been included as part of the regular overtime crew they started to focus their inappropriate behaviour towards me on a daily basis.
Michael Rafferty is one of the main perpetrators and has performed inappropriate sexual acts on me on a regular basis.
Upon hearing grievances from Michael Rafferty about another worker talking to him inappropriately and Michael had told him to stop doing that, found it to be an appropriate time to tell him I did not like what he was doing to me and to stop.
After the above incident, while in the feather room up on a stand I had been approached from behind from Michael Rafferty trying to insert his finger up my anus and I turned to him and told him I did not like and to stop his reply was doesn't Brendan [sic] do that to you to and I told him no!
I am not the only worker that is suffering this type of abuse, the Supervisor and two Leading Hands know and have witnessed the inappropriate sexual behaviour and have turned a blind eye allowing this behaviour to continue.
There has been no action taken from the people in charge of the red room even though they themselves have witnessed it, nor have there been any measures put in place for the safety and well being of the victims allowing Michael Rafferty, Brendan [sic] Waldock and Wade Phillips to continue abusing myself and other workers.
On the 18th of August I was speaking to Jenna the trainer about various things during this conversation I did tell her what had been happening at Inghams and the sexual abuse that had been going on for years. I also approached her again on Friday 2nd September and told her that I was going to see Mark Chan about the abuse and sexual harassment.
Due to the ongoing sexual harassment I am on edge all the time at work and am always worried that if try to break to code of silence and speak up I will be targeted, victimised and my work life will be made unbearable so I either leave or am fired.
Talking with other workers about speaking out and coming forward in attempt to put an end to the ongoing sexual harassment at Inghams and to ensure that the workers have a safe working environment for both current and future workers. Kahu Ogg and Sanan who have also been subject to this behaviour are willing to speak out.
(Errors in original.)
40 After giving Mr Chan these written complaints, Mr Ford left work. Mr Ford’s last day of work at the Inghams’ workplace was 5 September 2016.
41 Mr Chan commenced an investigation into Mr Ford’s complaints, which included conducting initial verbal discussions with employees named by Mr Ford in those complaints.
42 On 5 September 2016 Mr Ford attended the Beenleigh police station where he allegedly made a formal complaint of the alleged sexual harassment he claimed to have experienced at Inghams. Insofar as I am aware, no police action occurred as a result of Mr Ford’s complaint. Mr Ford claimed that the police advised him to lodge a formal complaint with the AHRC.
43 On or about 14 September 2016 Mr Ford lodged a complaint with the AHRC. He subsequently withdrew that complaint and instructed his solicitors to lodge a fresh complaint dated 6 October 2016 (AHRC complaint). In that complaint Mr Ford alleged sexual harassment within the workplace, discrimination in employment on the grounds of disability, and victimisation in employment. I will turn to the AHRC complaint shortly.
44 On or about 18 September 2016 Mr Ford commenced a worker’s compensation claim in respect of work-related psychiatric illness.
45 On or about 22 September 2016 it appears that Mr Chan’s internal investigation ceased and the investigation was taken over by the human resources team at Inghams.
46 On 19 January 2017 Mr Ford was informed that Inghams had denied his workers’ compensation claim. On 6 April 2017 Mr Ford applied to the Workers’ Compensation Regulator for a review of the decision. On 7 July 2017 the Workers’ Compensation Regulator set aside the decision and determined that Mr Ford’s worker’s compensation claim be accepted. Inghams appealed against this decision on 7 August 2017 to the Queensland Industrial Relations Commission, but discontinued the appeal on or about 20 February 2018.
BTLawyers External Investigation
47 On 23 September 2016 Inghams briefed law firm BTLawyers to conduct an external investigation (workplace investigation). The investigators were John Salter and Betsy Bargh. The scope and coverage of the workplace investigation were set out in the subsequent BTLawyers report, as follows:
The scope of this investigation is confined to certain historical events which are alleged to have taken place at Inghams’ production facility located at Goodman Place, Murarrie in Queensland, extending over a period from August 2015 to September 2016.
Those events are alleged to have primarily taken place inside a confined area of the production facility located at its eastern extremity and colloquially identified and referred to as “the red area” and in the male locker room, either before or after work had commenced or ceased on particular shifts. There is one incident which is alleged to have occurred at the entry gate of the production facility.
The red area receives and processes live birds to a point of evisceration, de-feathering and its geographical limits is notably recognisable by signage and that the colour of work clothing of production employees who work there is a maroon tinged red. This is in contrast to, and segregation from “the white area”, white being the colour of clothing worn by production employees who further process the birds following exit from the red area.
Furthermore, the events are alleged to have taken place on the fixed afternoon shift, a shift where work (other than when sporadic periods of overtime are required) commences at about 1.30 pm and concludes at about 10 pm Monday to Friday.
48 The workplace investigation objective was described as follows:
The objective of the investigation is to provide a report to Inghams as to:
• on the balance of probability, the likely accuracy and veracity of the allegations made by Mr Ford; and
• identify any potential risks to Inghams emerging from the findings; and
• recommend to Inghams any action it should consequently take with respect to any of its employees
49 In the BTLawyers investigation report dated 15 December 2016, Mr Ford’s allegations were summarised as:
4.1 Generic
4.1.1 During the period of his employment from February 2015, Ford witnessed inappropriate sexual behaviour including sexual assault towards employees generally and from approximately August 2015, he was subjected to sexual assault and harassment in the workplace on a daily basis.
4.1.2 There is a fearful culture within the Inghams’ Murarrie red area which inhibits and/or prevents reporting of sexual harassment, abuse and/or assault.
4.1.3 Various representatives of management know of and have directly witnessed workplace sexual harassment, abuse and/or assault. However, they have collectively and individually turned a blind eye, allowing it to continue unabated.
4.2 Specific
4.2.1 From August 2015 to 4 September 2016, Ford witnessed such behaviour being directed to other employees including:
• On or about 16 August 2016, Brendan [sic] Waldock was seen dry humping Vaiyama Junior Leveai whilst audibly stating “a big black monkey with a big banana in his pants”;
• Kahu Ogg had a metal pole inserted into his anus;
• Employees exposing their genitalia to others;
• Forcible intrusion of fingers by employees into others anuses; and
• Employees engaging in acts of simulation of anal and oral sex.
4.2.2 From August 2015 until 4 September 2016 Ford was sexually harassed and assaulted by fellow machine operators/forklift drivers Michael Rafferty, Brendan [sic] Waldock, Wade Phillips and George Mole, individually or collectively on a daily basis.
4.2.3 In June 2015, Ford lodged a written complaint against George Mole alleging that during workplace conversation Mole called him “a cocksucker” and further stated that he (Ford) “took it up the arse” and “sucked the bosses cock”. Furthermore, despite Mole receiving a written warning from management about this abuse, Ford continued to be habitually abused by Mole on a weekly basis between August 2015 and September 2016. And further still, supervisor Jason Flanders knew of this continuing abuse, but did nothing about it.
4.2.4 Whilst employed at Inghams, Ford had his pants pulled down on more than one occasion.
4.2.5 On an unspecified date and time, while Ford was sorting out his work gear before entering the entry gate at the western extremity of the factory, Phillips proceeded to put his finger up his bottom from behind, which shocked and humiliated Ford.
4.2.6 In August 2015, whilst Ford was working in the feather room, Rafferty approached him with stealth from behind and attempted to insert his finder into Ford’s anus.
4.2.7 On or about 2 September 2016, Ford attended a meeting with Production Manager Mark Chan, wherein Ford verbally complained about the sexual harassment and assault to which he had been exposed, to which Chan reacted flippantly, suggesting that Rafferty, Waldock and Wade Phillips were “doing the John Hopoate”.
4.2.8 On or about 5 September 2016, Ford lodged a formal written complaint which Chan has not taken seriously, and it has been “swept under the carpet”. Furthermore, it is alleged this is Chan’s normal approach to any such complaint.
4.2.9 Kahu Ogg and Sanan Ly have been subjected to sexual harassment in the workplace whilst working at Inghams.
4.2.10 In July and August 2016, supervisor Saxena Johnson Jnr discriminated against Ford in the workplace because Johnson Jnr believed Ford was faking a journey related shoulder injury by reducing the amount of overtime Ford was allocated and by allocating him hanging duties for which Ford was ill suited, given his physical restrictions.
4.2.11 Because Ford was unafraid to talk to higher level bosses and tell the truth, he has been targeted, singled out and victimised by Mark Chan, Saxena Johnson Jnr, Jason Flanders, Kelvin Lucht, Brendam Waldock, Wade Phillips, Michael Rafferty and George Mole.
50 At para 5.1 of the report, the investigators stated that they inspected the workplace twice during normal operating hours, namely on 4 November 2016 at approximately 10.30 am and again on 10 November 2016 at approximately 2.00 pm. The investigators stated that they had closely scrutinised all areas where incidents alleged by Mr Ford had occurred, including all facets of the Red Area operations, the men’s locker room and the entry/egress point of the production facility. The investigators also interviewed:
Kahu Ogg;
Sunandeep Dhanoa;
Kurt Mahyika (a process worker);
Jilali Rahiwi;
Emma Hines;
Edwin Okoro;
Vaiyama Levaai;
Kelvin Lucht;
Brenden Waldock;
Jason Flanders;
Mark Chan;
Sanan Ly;
Jenna Mae Horne (a training officer);
Wade Phillips;
George Mole; and
Saxena Johnson Jnr.
51 The investigators did not interview Mr Rafferty, but spoke with him on the telephone.
52 The investigators concluded that Mr Ford’s allegations were not substantiated. Materially, the investigators concluded that:
the overwhelming evidence of management and employees of Inghams was at odds with Mr Ford’s various versions of events;
an event in 2015 involving a former employee named Jordan Hill prodding Mr Ogg in the buttocks with a metal pole had been immediately dealt with by Inghams;
the only interviewee who attested to the existence of workplace behaviour even remotely resembling that which Mr Ford alleged was Mr Ly, however the investigators did not regard Mr Ly as reliable, and further considered that he had “an axe to grind with his previous supervisor Glenn Hannant [sic]”; and
there was a potential risk to Inghams arising from the delay in initiating the complaint process after Mr Ford’s formal complaint, however this delay was defensible in light of the nature of the complaints and the number of people involved.
The AHRC Complaint
53 In his AHRC complaint dated 6 October 2016, Mr Ford claimed that during the period from August 2015 to 4 September 2016:
he had been sexually harassed and sexually assaulted by Mr Rafferty, Mr Waldock and Mr Phillips “on a daily basis”;
he had witnessed behaviour amounting to sexual harassment, sexual assault and sexual abuse occurring, and directed, towards other employees;
he had been verbally harassed by Mr Mole on a weekly basis;
he had been discriminated against because of his disability by Mr Johnson; and
he had been victimised by Mr Rafferty, Mr Waldock, Mr Phillips, Mr Mole, Mr Johnson and Mr Chan.
54 In his AHRC complaint, Mr Ford stated that he thought the complaint could be resolved by financial compensation and letter of apology.
55 A conciliation conference was held on 24 March 2017, but the AHRC complaint was not resolved. The complaint was subsequently terminated on 17 May 2017 under s 46PH(1)(i) of the AHRC Act, on the basis that the President was satisfied that there was no reasonable prospect of the matter being settled by conciliation.
application to the court
56 On 14 July 2017 Mr Ford filed an originating application under the AHRC Act. In order, the respondents were as follows:
(1) Inghams;
(2) Michael Rafferty;
(3) Brenden Waldock;
(4) Wade Phillips;
(5) George Mole;
(6) Saxena Johnson Jnr; and
(7) Mark Chan.
57 In this application, Mr Ford claimed, in summary, as follows:
(1) The second, third, fourth and fifth respondents had sexually harassed him:
(a) In the case of the second to fourth respondents, by various of them either engaging in, encouraging or being concerned in assaults of a sexual nature or engaging in unwelcome conduct of a sexual nature or using language of a sexual nature over a sustained period, including:
(i) acts of digital anal assault;
(ii) indecent sexual acts such as touching Mr Ford’s penis and rubbing genitalia on Mr Ford;
(iii) performing simulated sexual acts on Mr Ford;
(iv) exposing genitals to Mr Ford;
(v) abusive language of a sexual nature;
(vi) language of a sexual nature; and
(vii) performing acts of a sexual nature in respect of or on other persons in the workplace; and
(b) In the case of the fifth respondent, using abusive language of a sexual nature and language of a sexual nature to Mr Ford.
(2) By reason of s 106 of the SD Act, Inghams was vicariously liable for the sexual harassment by the second, third, fourth and fifth respondents.
(3) Inghams and the fifth, sixth and seventh respondents victimised Mr Ford contrary to the SD Act.
(4) Inghams and the sixth respondent discriminated against Mr Ford on the ground of disability.
(5) Inghams and the sixth respondent harassed Mr Ford in relation to his disability.
(6) Inghams and the sixth respondent victimised Mr Ford contrary to the Disability Discrimination Act 1992 (Cth).
58 Mr Ford sought an apology from each of the respondents, and compensation in the amount of $1,491,600.00.
59 During the course of the hearing, Counsel for the applicant informed the Court that the applicant was no longer pressing any claims:
under the Disability Discrimination Act 1992 (Cth) or in relation to victimisation or disability discrimination (paras 91 to 101 in the statement of claim);
against Mr Saxena Johnson and Mr Mark Chan; or
for relief that sought the imposition of penalties on the first, sixth and seventh respondents pursuant to s 94(1) of the SD Act.
60 Subsequent to the filing of the RFASOC, the applicant indicated that he did not press his pleaded claim of unwelcome sexual advances or implied requests for sexual favours against Mr Rafferty, Mr Waldock or Mr Phillips: see RFASOC at 58(b), 64(b) and 76(b).
61 The first, third, fourth and fifth (and originally named sixth and seventh) respondents filed a defence on 30 October 2017, and an amended defence on 8 August 2019.
62 The second respondent, Mr Rafferty, filed a defence on 27 October 2017 and an amended defence on 9 July 2018.
63 The applicant filed replies to the defence of the second respondent and the defence of the first and third to fifth respondents on 10 November 2017. The applicant filed an amended reply, in response to the amended defence of the first and third to fifth respondents, on 8 August 2019.
64 I note that in the amended defence of the first, third, fourth and fifth respondents, their denial of para 102 of the RFASOC has been struck out. It is unclear why they have done so. The second respondent, by his amended defence, maintained his denial of the claim in para 102 of the RFASOC insofar as it related to him. This is an issue which would properly arise in the event that contraventions are established.
65 At the hearing, Mr Ford was represented by solicitors and Mr Reidy of Counsel. All respondents were represented by solicitors and Ms Reece of Counsel.
agreed ISSUES For determination
66 On 21 September 2019 a statement of agreed issues for determination was filed in the proceedings (Agreed Issues). These Agreed Issues were as follows:
1. Whether any of the following events occurred:
Alleged physical conduct to the Applicant
(a) The Second Respondent or the Third Respondent engaged in the conduct of patting or slapping or suggestively rubbing Mr Ford’s buttocks in the period from August 2015 to about September 2016 usually in the feather room and sometimes in the locker room as alleged in paragraph 15 of the Redacted Further Amended Statement of Claim (RFASOC).
(b) The Second Respondent or the Third Respondent engaged in the conduct of performing simulated genital sex acts otherwise known as dry humping on the Applicant in the period from around August 2015 to about September 2016 in the feather room and the locker room as alleged in paragraph 18 of the RFASOC[.]
(c) The Second Respondent or the Third Respondent engaged in the conduct of performing acts of simulated oral sex on the Applicant in the period from around August 2015 to about September 2016 in the feather room and the locker room as alleged in paragraph 21 of the RFASOC.
(d) The Second Respondent or the Third Respondent engaged in the conduct of performing acts of simulated anal sex on the Applicant in the period from around August 2015 to about September 2016 in the feather room as alleged in paragraph 22 of the RFASOC.
(e) The Second Respondent or the Third Respondent engaged in the conduct of pulling down the Applicant’s pants on two occasions in the period from around August 2015 to about September 2016 in the feather room as alleged in paragraph 25 of the RFASOC.
(f) The Second Respondent in about November 2015 engaged in the conduct of using his finger to poke the Applicant in the anus in the feather room as alleged in paragraph 28 of the RFASOC.
(g) The Second Respondent in about early 2016 engaged in the conduct of using a squeegee mop handle to poke the Applicant in the anus in the feather room as alleged in paragraph 31 of the RFASOC.
(h) The Third Respondent in about August 2016 engaged in the conduct of grabbing the Applicant’s penis in the feather room as alleged in paragraph 34 of the RFASOC.
(i) The Third Respondent in about August 2016 engaged in the conduct of putting his finger into the Applicant’s anus in the feather room as alleged in paragraph 40 of the RFASOC.
(j) The Fourth Respondent in about February 2016 engaged in the conduct of using his finger to poke the Applicant in the anus at a picnic table near the security gate entrance to the First Respondent's Murarrie facility as alleged in paragraph 70 of the RFASOC.
Alleged exposing buttocks
(k) The Third Respondent in about July 2016 engaged in the conduct of pulling down his pants and exposing his buttocks to the Applicant in the feather room as alleged in paragraph 37 of the RFASOC.
Alleged witnessed conduct
(l) The Third Respondent in about March 2016 engaged in the conduct of poking his finger into or in the region of Kelvin Lucht’s anus in view of the Applicant in the feather room as alleged in paragraph 43 of the RFASOC.
(m) The Second and Third Respondents engaged in the conduct of performing the simulated genital sex act known as dry humping on Glenn Hannett in the sight of the Applicant in the feather room as alleged in paragraph 46 of the RFASOC.
(n) The Second and Third Respondents in about June 2016 in sight of the Applicant engaged in the conduct of encouraging Anthony Collett to pull down his pants and expose his genitals in the feather room as alleged in paragraph 49 of the RFASOC.
(o) The Third Respondent, with Anthony Collett, in about July 2016 in sight of the Applicant engaged in the conduct of performing a simulated genital sex act on Vaiyama Junior Levaai in the feather room as alleged in paragraph 52 of the RFASOC.
(p) The Second and Third Respondents in about August 2016 in sight of the Applicant engaged in the conduct of performing acts of simulated oral and anal sex on Bijo Varghese in the feather room general area as alleged in paragraph 55 of the RFASOC.
(q) The Fourth Respondent in about late July or early August 2016 in sight of the Applicant engaged in the conduct by exposing his testicles and rubbing them on Bijo Varghese in the locker room as alleged in paragraph 73 of the RFASOC.
The words used by the Fifth Respondent
(r) The Fifth Respondent engaged in the conduct of calling the Applicant a “cocksucker” from about August 2015 to September or whether the Fifth Respondent engaged in the conduct of, saying to the Applicant that he “sucked the bosses cock” and that Mr Ford “takes it up the arse” in the locker room in about July or early August 2016 or whether the Fifth Respondent engaged in the conduct of saying to the that the Applicant “likes takes it up the arse” in the locker room in about November 2015 as alleged in paragraph 82 of the RFASOC.
2. The credit of the following witnesses:
(a) Mr Ford;
(b) Ms Hanner[;]
(c) Mr Rafferty;
(d) Mr Waldock;
(e) Mr Phillips;
(f) Mr Mole;
(g) Mr Lucht;
(h) Mr Hannett;
(i) Mr Collett;
(j) Mr Varghese;
(k) Mr Levaai;
(l) Mr Flanders;
(m) Mr Johnson;
(n) Mr Okoro;
(o) Mr Chan;
(p) Mr Ogg;
(q) Mr Bhardwaj; and
(r) Mr Ly.
3. If any of the Witnessed Conduct as alleged (paragraph 1(l) to (q)) is found by the court, whether it is within the jurisdiction of the court.
4. Whether any of the alleged conduct in paragraph 1 above, if found by the court, was sexual harassment within the meaning of section 28(1)(b) [sic] of the Sex Discrimination Act 1984 (Cth).
5. Whether the First Respondent is vicariously liable for any of the alleged conduct at paragraph 1 above, if found by the court.
6. Whether or not the court prefers the expert opinion of Dr Byth or Dr Shaikh in respect of:
(a) current diagnosis;
(b) impact of what, if any, behaviour the Applicant experienced when performing work for the First Respondent;
(c) the contribution of the Applicant’s:
i. medical history, including mental ill-health;
ii. social history; or
iii. family history[;]
(d) to the Applicant’s current diagnosis[;]
(e) the Applicant’s ability to return to work as a result of any temporary or permanent impairment; and
(f) any medical treatment the Applicant may or may not require.
7. Objections to the following evidence:
(a) the affidavit of Jatin Bhardwaj Exhibit #6(A) filed 14 June 2019;
(b) the affidavit of Kahu Ogg Exhibit #15(A) filed 14 June 2019;
(c) the affidavit of Sanan Ly Exhibit #18(A) filed 14 June 2019;
(d) the evidence referred to in 30 pages of objections filed for the Respondents;
(e) the evidence of complaints of the Applicant to Mr Ogg, Mr Bhardwaj, Mr Ly and Ms Hanner on the basis of hearsay;
(f) tendency and coincidence evidence;
(g) admissibility of evidence of Dr Byth[.]
67 These Agreed Issues provide a useful commencement point for consideration of the claims of Mr Ford.
68 The parties agreed that the scope of the Court’s jurisdiction is an issue for determination. Agreed Issue 3 is whether, if any of the witnessed conduct as alleged (paras 1(l) to (q)) is found by the Court, it is within the jurisdiction of the Court. This is a threshold issue in respect of the Court’s consideration of this part of the case.
69 I will deal with this issue before turning to the evidentiary matters before the Court and specific consideration of the claims of the applicant.
SCOPE of JURISDICTION
Background
70 Specifically, part of the applicant’s claim before this Court relates to alleged witnessed conduct, consisting of Agreed Issues 1(l) to 1(q).
71 At the hearing, Counsel for the applicant submitted that, notwithstanding the operation of s 46PO, the applicant made reference to this alleged witnessed conduct in the complaint before the AHRC. At para 8 of the AHRC complaint, Mr Ford stated:
8. I have also witnessed the above behaviour being performed and directed towards other employees and in particular recall the following events:
(a) on or about 16 August 2016 I witnessed an employee dry humping and making racial comments such as “big black monkey with a big banana in his pants” to another employee;
(b) metal poles being poked up employee’s bottoms by other employees;
(c) employees exposing their “private parts” to other employees;
(d) fingers being poked up employee’s bottoms by other employees;
(e) employees pretending to have anal sex with other employees; and
(f) employees pretending to receive oral sex from other employees.
I understand this behaviour was reported to senior staff members at lnghams, but no action was taken.
72 Counsel for the applicant submitted that the events, whilst unspecified in terms of individuals involved, or location and timing, all correlated to incidents raised in the RFASOC.
73 I note there was no reference in Mr Ford’s RFASOC to any event referable to para 8(b) of the AHRC complaint.
74 On this basis, Counsel for the applicant submitted that the matters appeared with clarity in the complaint to the AHRC, and therefore there should be no issue with the Court’s jurisdiction.
75 In their opening submissions, the respondents argued that the Court must determine the parameters of the complaint which was terminated by the Commission. The respondents argued that Mr Ford’s application was not a substantially similar complaint to his AHRC complaint, both in subject matter and due to its scope, going beyond the AHRC complaint which was terminated.
76 The respondents, in their closing submissions, submitted that the individuals allegedly the subject of the incidents did not participate in or appear during the AHRC process, and did not have a right of response until these proceedings. The respondents further submitted that the Court should dismiss the alleged witnessed conduct from the applicant’s claim, for want of jurisdiction, as the applicant, by omitting the incidents from the AHRC complaint, failed to give the parties an opportunity to resolve that part of the dispute in the AHRC and, in effect, bypassed the AHRC to first articulate the alleged incidents in this Court.
Consideration
77 Section 46PO(3) of the AHRC Act relevantly provides as follows:
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
78 In considering whether the alleged witnessed conduct can form part of the applicant’s complaint before this Court, the Court must be satisfied that the conduct has been previously the subject of a complaint to the Commission which was terminated.
79 The most recent Full Court authority considering s 46PO(3) is Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118. In that case, their Honours said as follows:
46. Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J’s decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93–94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).
47. As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F-G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580–581 [35]–[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39].
48. The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act….And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach “not bound by technicality”...
80 The section has also been the subject of consideration by single Judges of this Court. Recently, in Cumaiyi v Northern Territory of Australia [2020] FCA 1299, White J observed:
14. Section 46PO(3) has now been considered in several authorities and some matters concerning the approach to its application can be taken to be settled:
(a) section 46PO does not provide for a general statutory cause of action available to anyone who may at any time have been affected by the unlawful discrimination. It is available only to those who made the complaint or on whose behalf the complaint was made (see the definition of “affected person” in s 3(1)) and it lies only in respect of the subject matter of the complaint to the AHRC: Grigor‑Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450 at [18];
(b) the legislative purpose is to define and filter the cause of action created by s 46PO so that it will correspond, within the limits contained in subs (1) and (3), with the complaint terminated by the President of the AHRC: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [43]: Grigor‑Scott at [19];
(c) subsection (3) indicates that the unlawful discrimination alleged in the application to the Court must either be the same as, or the same in substance as, the unlawful discrimination which was the subject of the terminated complaint or must arise out of the same or substantially the same acts, omissions or practices which were the subject of the terminated complaint: King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8; (2012) 286 ALR 149 at [25]; Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573 at [39]. It means that a terminated complaint cannot be used to launch an application to this Court or the FCC concerning “conduct substantially wider – or beginning substantially earlier – than that initially complained of”, with the effect that the procedures provided for in the AHRC Act are effectively bypassed: Travers v New South Wales [2000] FCA 1565 at [8]. I understand the reference of Lehane J in Travers to the conduct about which the complainant “initially complained” to be a reference to the conduct which was the subject of the complaint to the AHRC, including any amendments of that complaint or other elaborations of it to which occurred while the complaint was current in the AHRC, and not a reference to the complaint as initially lodged with the AHRC;
(d) by limiting the subject matter of applications to this Court pursuant to s 46PO(1), subs (3) necessarily limits the exercise of power by this Court: Charles v Fuji Xerox at [35]. In this way s 46PO(3) indicates that the jurisdiction of this Court and of the FCC is available only if the allegations in an application do not travel in substance beyond the allegations made in the complaint to the AHRC: Stepien v Department of Human Services [2018] FCA 1062 at [13];
(e) the subsection does not prevent an amendment which does no more than put a different legal complexion on the same or substantially the same acts, omissions or practices: King v Jetstar Airways at [28]; and
(f) the gateway or filter requirement in s 46PO(3) should be viewed as a practical one, and not as duly technical. It should not be approached in the same manner as are pleadings: Hastwell v Kott Gunning [2017] FCA 1557 at [26].
81 Justice White noted the examination by Katz J of the two limbs of s 46PO(3) in Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; [2000] FCA 1531, where his Honour said:
38 Paragraph (a) of subs 46PO(3) of the HREOCA proceeds on the basis that the allegations of fact being made in the proceeding before the Court are the same as those which were made in the relevant terminated complaint. The provision naturally permits the applicant to claim in the proceeding that those facts bear the same legal character as they were claimed in the complaint to bear. However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.
39 Paragraph (b) of subs 46PO(3) of the HREOCA, on the other hand, permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character “arise[s] out of” the facts which are now being alleged.
82 I am satisfied that the unlawful discrimination alleged in the RFASOC (and identified in Agreed Issues 1(l)-1(q)) is the same, or the same in substance, as the unlawful discrimination that was the subject of Mr Ford’s terminated complaint in the AHRC within the meaning of s 46PO(3)(a) of the AHRC Act. In particular, I consider it clear that:
para 8(a) of the AHRC complaint refers to the incident where Mr Ford alleged that Mr Waldock and Mr Collett performed a simulated sex act on Mr Levaai, pleaded at para 52 of the RFASOC;
para 8(c) of the AHRC complaint refers to the incident where Mr Ford alleged that Mr Rafferty and Mr Waldock encouraged Mr Collett to expose his penis, pleaded at para 49 of the RFASOC, and Mr Phillips’ alleged conduct where he exposed his testicles and slapped them on Mr Varghese, pleaded at para 73 of the RFASOC;
para 8(d) of the AHRC complaint refers to the incident where Mr Ford alleged that Mr Waldock poked his finger into the region of Mr Lucht’s anus, pleaded at para 43 of the RFASOC; and
paras 8(e) and 8(f) of the AHRC complaint refer to the incident where Mr Ford alleged that Mr Waldock and Mr Raffery performed unwelcome simulated anal and oral sex on Mr Varghese, pleaded at para 55 of the RFASOC.
83 This is not a case where:
new respondents – not the subject of a terminated AHRC complaint – have been added to Court proceedings; or
new facts not previously raised for consideration by the AHRC are alleged.
84 This is a case where the pleadings in this Court are more specific in respect of the same alleged conduct as was the subject of the terminated AHRC complaint, only now by reference to identification of persons involved. Paras 43, 49, 52, 55 and 73 of the RFASOC cover substantially the same ground in respect of witnessed conduct as paras 8(a), 8(c), 8(d), 8(e) and 8(f) of the AHRC complaint (cf Lehane J in Travers v New South Wales [2000] FCA 1565 at [10]). The facts pleaded in paras 43, 49, 52, 55 and 73 of the RFASOC bear the same legal character as claimed in the AHRC complaint.
85 Further, as Lehane J also observed in Travers:
8. … It may well be that the ambit of a complaint is to be ascertained, for the purpose of s 46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination.
86 Notwithstanding the absence of evidence to the following effect, I also consider it likely that, in the course of the conduct of the AHRC complaint, Mr Ford would have identified Mr Lucht, Mr Collett, Mr Varghese and Mr Levaai as persons involved in the conduct Mr Ford allegedly witnessed. To that extent, I consider it likely that the shape the AHRC complaint assumed by the time of the termination by the Commission included reference to those co-workers. That Mr Lucht, Mr Collett, Mr Varghese and Mr Levaai did not participate in or appear during the AHRC process is in my view irrelevant to the question whether the present application before the Court meets the requirements of s 46PO(3) of the AHRC Act.
87 I am satisfied that the Court has jurisdiction to entertain this aspect of Mr Ford’s complaint.
EVIDENTIARY ISSUES
88 In both written and oral submissions, the parties submitted that there were multiple evidentiary issues requiring the Court’s attention before the substantive issues in the case could be addressed.
89 First, the respondents objected to the admission of the following evidence (as set out in Agreed Issue 7):
(1) the last filed affidavits of Mr Ogg (sworn 13 June 2019), Mr Bhardwaj (sworn 14 June 2019) and Mr Ly (sworn 6 June 2019) which post-dated the respondents’ 1 March 2019 notice of objections, and to which the respondents objected in full;
(2) evidence identified in the respondents’ notice of objection filed on 1 March 2019, being a detailed document in the length of 29 pages which superseded an earlier notice of objection of 89 pages in length filed on 13 February 2019;
(3) evidence of complaints by Mr Ford to Mr Ogg, Mr Bhardwaj, Mr Ly and Ms Hanner, on the basis of hearsay;
(4) tendency and coincidence evidence; and
(5) the admissibility of evidence of Dr Byth.
90 Second, on 1 March 2019 the applicant filed his revised notice of objections to the evidence of the respondents, being a document in the length of 5 pages. The applicant also submitted that certain pleadings in the amended defence of the first, third, fourth and fifth respondents constituted deemed admissions.
91 It is appropriate to examine these issues separately.
Last filed affidavits of Mr Ogg, Mr Ly and Mr Bhardwaj
92 Filed affidavits were sworn by Mr Ogg on:
18 May 2018;
3 August 2018;
16 October 2018; and
13 June 2019.
93 Filed affidavits were sworn by Mr Ly on:
19 May 2018;
3 August 2018; and
6 June 2019.
94 Filed affidavits were sworn by Mr Bhardwaj on:
19 May 2018;
3 August 2018; and
14 June 2019.
95 The respondents objected to the last filed affidavits of Mr Ogg, Mr Ly and Mr Bhardwaj on the basis that that evidence did not comply with the Court’s Order of 11 June 2019 by exceeding the clear purpose of “particularising” the earlier misleading and prejudicial evidence from those witnesses. The respondents also contended that new allegations of fact and unlawful conduct were made by each witness, particularly Mr Ogg, which was an abuse of process. The respondents submitted that the Court should therefore reject the last filed affidavits of Mr Ogg, Mr Ly and Mr Bhardwaj.
96 Turning to my Order of 11 June 2019, it is clear that the applicant was given leave to file and serve additional affidavits of these witnesses, particularising the evidence in their earlier affidavits. I also note that the respondents were given leave to file and serve further affidavits responding to the further affidavits filed by the applicant.
97 I consider that there is merit in the submission of the respondents. The affidavits of Mr Ogg, Mr Ly and Mr Bhardwaj are a mixture of particularisation of earlier evidence, and (particularly in respect of Mr Ogg) new evidence. However, from the point of view of admissibility of this evidence (as distinct from the weight I will attribute to this evidence):
to the extent that the affidavits of these witnesses filed after 11 June 2019 contained new evidence, insofar as I can ascertain, no issue in this respect was taken by the respondents in Court until the trial;
the respondents had an opportunity to respond to the evidence in the last filed affidavits of these witnesses by filing their own evidence, pursuant to the Orders of 11 June 2019, however insofar as I can ascertain, they did not do so;
the evidence in the last filed affidavits of Mr Ogg, Mr Ly and Mr Bhardwaj appears relevant to issues in the trial;
the respondents had ample opportunity at the trial to test this evidence of these witnesses during cross-examination;
the respondents were able to make submissions as to the weight the Court should attribute to the last filed affidavits of these witnesses; and
the respondents were able to make submissions as to the credit of those witnesses in light of their last filed affidavits.
98 In my view the last filed affidavits of Mr Ogg, Mr Bhardwaj and Mr Ly should be admitted.
Respondents’ notice of objection to evidence
99 In their notice of objection to evidence filed on 1 March 2019, the respondents objected to evidence of:
Mr Ly;
Mr Bhardwaj;
Mr Ogg;
Ms Hanner;
Mr Ford;
Dr Byth; and
Mr Barlow.
100 The evidence of Dr Byth and Mr Barlow is medical evidence, and I will deal with that evidence separately.
101 Some confusion arose in the course of the proceedings as to the parties’ approach to, and the Court’s consideration of, the admissibility of this evidence.
102 In the course of case management of the proceedings, I listed the proceedings for a case management hearing on 9 April 2019 in order to hear objections to evidence.
103 In relation to objections to evidence as a whole, however, at the case management hearing on 9 April 2019 I indicated to the parties my overall preference to admit evidence on which the parties sought to rely, in order for the Court to be presented with that which the parties perceived to be their best evidence. This approach was, in my view, consistent with the overarching purpose of the civil practice and procedure provisions (as set out in s 37M of the Federal Court of Australia Act 1976 (Cth)) in a complex matter involving sensitive and emotional matters of evidence, and the desirability of facilitating the just resolution of the dispute before the Court according to law as quickly, inexpensively and efficiently as possible. I was also conscious of the proposed duration of the proceedings and the prospect of significant costs which would be incurred by the parties, as well as Court time in hearing detailed and contested objections to evidence.
104 At the hearing on 9 April 2019 after I expressed my views, the matter was briefly adjourned and Counsel conferred. On resumption of Court, Counsel for the respondents made the following submission:
Your Honour, it has been used constructively. Your Honour, I can indicate in the circumstances, given your Honour’s indication, the respondent doesn’t press the objections brought in the filed objections to evidence document.
105 I can only understand that the document to which Counsel referred in this submission was the notice of objection filed on 1 March 2019, that the respondents did not seek to press their objections, and that the matter would proceed at trial with all evidence being admitted for consideration. In the circumstances, and with no apparent demur on the part of the parties, I then adjourned Court.
106 I note the applicant also filed a document, being “Applicant’s Notes on Objections to Evidence” of some 150 pages (including extensive annexures) on 9 April 2019. I understand that the applicant had anticipated relying on that document at the hearing of 9 April 2019.
107 On the first day of the trial, Counsel for the respondents again raised objections to evidence referable to their notice of objections filed on 1 March 2019. At the time, in querying this approach, I said as follows:
I also gave the parties the opportunity to return for further case management on 11 June. You might recall that. The parties – my Associates sent an email to the parties. The parties decided to come in for that case management day. We had a case management day. No further issues were raised in relation to objections to evidence, as I recall. Now, I really want to get on with this. If there are specific issues of importance that you want to raise, well, I am reluctant, given the fact that we’ve already been down this path, but I’m not prepared to have 30 pages of evidence – objections to evidence raised on day 1 of the trial. As a matter of case management, in my view, that horse has bolted.
I hear what you’re saying, Ms Reece. You can make whatever submissions you like about whether certain evidence should be given any weight by me or shouldn’t be allowed by me, but I would prefer you to perhaps do that after the trial. The reason is because some of this evidence may just simply fall away. I don’t know. I’m also thinking of the time you’re going to spend on this, and you may find that it’s more constructive later. But if you – please don’t put in – expect me to rule on evidence at this point if it’s 30 pages of evidence. I’ve already given – we’ve already been down this path and I’ve already told the parties my preferred approach to deal with the evidence in this case.
It is very difficult. They’re very – as the parties are aware, there are some quite difficult allegations being made on both sides. I would simply like to get on and hear the evidence and have that evidence tested properly. And I have no problem with having it properly tested in court….
(Transcript page 55 ll 1-24.)
108 Counsel for the applicant made no particular objection to this course of events. In the Statement of Agreed Issues for Determination the parties also agreed that the respondents’ notice of objections to evidence require determination.
109 In the circumstances, I consider the following approach to be appropriate:
In light of the extensive and voluminous objections to evidence on the part of the respondents – to the extent practical, I will make general rulings addressing:
(a) reiterated objections made on the same basis, including hearsay, relevance, impermissible opinion, and unfairly prejudicial and misleading; and
(b) tendency evidence.
In respect of objections to specific evidence – I will progressively make rulings on the admissibility of evidence on which the parties rely and which is relevant to the determination of this application.
Impermissible opinion
110 Section 76(1) of the Evidence Act 1995 (Cth) contains the opinion rule, namely that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. However, s 78 of the Evidence Act provides as follows:
78. Exception: lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
111 In Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, French CJ, Heydon and Bell JJ relevantly observed:
45. Function of common law rule. The common law permitted the reception of non-expert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences – either in lieu of or in addition to whatever evidence of specific matters of primary fact they could give about that event or condition. The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state, but a thorough search would uncover very many more. The problems which arise in examples falling into this category would have been reduced, though not completely solved, if, at the time of the observation, the observer had foreseen that one day he or she would be questioned by a police detective or a barrister, for then the observer might have made some conscious contemporaneous attempt to sort out the primacy facts so as to facilitate their future recollection and expression. But in many cases, to endeavour to describe the primary facts underlying the inference may be ineffective or misleading without stating the inference. The reason why it is very difficult for the observer is that it is almost impossible to separate the inferences from the primary facts on which they are based, and often very difficult to identify and recollect the primary facts themselves.
…
48. … Evidence about a place in which a person has fallen and about the injuries of that person is not within the category of cases where lay opinion evidence was admissible at common law and is admissible under s 78. The function of the law in relation to that category is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. Where the evidence is that a person appeared to be drunk or middle-aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness’s perception of the sobriety, age or emotional state being observed.
(Emphasis added, footnotes omitted.)
112 See also for example Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207; [2015] FCAFC 130 at [119].
113 A great deal of evidence on which the applicant relies is the subject of objection by the respondents as impermissible opinion. I note:
evidence of Mr Ford (for example: “Mr Flanders and Ms Horne would have been able to hear our conversation because the office is open plan and it was quiet at the time”; “I suffer from a mental illness as a result of what I experience at Inghams”; and, “It appeared to me that Rafferty and Waldock could do any disgusting sexual thing they wanted to other employees and that there was nothing that could be done about it”);
evidence of Mr Bhardwaj (for example: “I knew from other employees who were unhappy about their treatment that they were too scared to speak out because they know nothing would be done”);
evidence of Mr Ogg (for example: “There was a further reason that I did not make a complaint about the sexual harassment and bullying that was done to me and others. It was because it was obvious when someone in the red area was going to the office to make a complaint.”);
evidence of Mr Ly (for example: “Most of the boys at work took it as a joke”); and
evidence of Ms Hanner (for example: “Richard didn’t sleep well that night”; and, “Richard seemed like he couldn’t get what he had told me out of his head”).
114 In relation to opinions expressed by these witnesses, many of the opinions expressed appear to relate to what they claimed to see, hear or otherwise perceive, and without those opinions their evidence does not convey an adequate account or generate an adequate understanding of the witness’ perception. In my view, evidence of these witnesses to which the respondents objected as impermissible opinion is admissible in accordance with s 78 of the Evidence Act.
Hearsay
115 It is well-settled that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation (the hearsay rule: s 59 Evidence Act).
116 A great deal of the evidence on which the applicant relied was the subject of objections by the respondents on the basis of hearsay. I note:
evidence of Mr Ford (for example: “I recall Rafferty telling me that he had to get his own set of forklift keys cut outside of work because of the shortage in keys”; and, “I knew a co-worker Anthony Perekeiko who had a shoulder injury. Rafferty had told me that Kelvin Lucht the leading hand had said Anthony Perekeiko was lazy even though he had an injury”);
evidence of Mr Bhardwaj (for example: “I recall Richard telling me that he had complained to Glenn Hannett and that Glenn had ignored his complaint”; and, “I remember a Korean process worker (I do not recall his name) who worked at Inghams for around 6 months or less making a complaint about racist comments Mole made about him”);
evidence of Mr Ogg (for example: “Ms Jenna Horne, who was in the office at the time told me that Mr Mole had received a warning for the way he had treated Mashala”);
evidence of Mr Ly (for example: “Richard told me that Rafferty’s and Waldock’s behaviour was affecting him badly and that he did not ‘feel right in the head’”); and
evidence of Ms Hanner (for example: “Dr Muhammed explained to me that Richard’s car accident on Monday was a suicide attempt and that he had deliberately driven into the side of the motorway”).
117 There is merit in the submission of the applicant that some of this evidence is first-hand hearsay within the meaning of s 62 of the Evidence Act. The restriction to first-hand hearsay is governed by s 62 of the Evidence Act as follows:
Restriction to “first-hand” hearsay
(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
(3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.
118 Section 64 of the Evidence Act provides an exception to the hearsay rule in civil proceedings where the maker of a representation is available, as follows:
(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
…
(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person; or
(b) a person who saw, heard or otherwise perceived the representation being made.
119 The applicant submitted that the following evidence could properly be admitted as first-hand hearsay:
the affidavit of Kahu Ogg sworn 18 May 2018 paras 12, 13, 14, 17 and 18;
the affidavit of Sanan Ly sworn 19 May 2018 paras 9, 10 and 13;
the affidavit of Jatin Bhardwaj sworn 19 May 2018 paras 26 and 28;
the affidavit of Jatin Bhardwaj sworn 3 August 2018 para 21; and
the affidavit of Lee Hanner sworn 4 June 2018 paras 17, 19-23, 25-27, 29, 34-40, 57, 64, 65, 77, 79, 89 and 92.
120 With the exception of para 10 of the affidavit of Mr Ly sworn 19 May 2018, and paras 39, 40, 65 and 89 of Ms Hanner’s affidavit sworn 4 June 2018, I am satisfied that the evidence, as submitted by the applicant, is first-hand hearsay. In all cases as set out in that evidence the person who made a relevant representation was called to give evidence within the meaning of s 64(3) of the Evidence Act and the opportunity was provided to the respondents to cross-examine the maker of the relevant representation: Osborne Metal Industries v Bullock (No 1) [2011] NSWSC 636 at [26]. Otherwise:
At para 10 of his affidavit sworn 19 May 2018, Mr Ly gives direct evidence of matters he claims to have witnessed. This is not hearsay.
Paras 39, 40 and 89 of Ms Hanner’s affidavit sworn 4 June 2018 are fundamentally direct evidence, including opinion evidence. Ms Hanner’s opinions of Mr Ford’s mood are admissible pursuant to s 78 of the Evidence Act.
Evidence of Ms Hanner at paragraph 65 of her affidavit sworn 4 June 2018 is hearsay, however not first-hand hearsay within the meaning of s 64(3) of the Evidence Act.
121 The respondents submitted that, insofar as evidence of Mr Bhardwaj, Mr Ogg and Mr Ly about representations made to them by Mr Ford was not consistent with Mr Ford’s evidence, the evidence of Mr Bhardwaj, Mr Ogg and Mr Ly about those representations was inadmissible, because:
Subsection 64(3) of the Evidence Act is not a vehicle to buttress the purported truth of the Applicant’s complaints to his friends when the Applicant himself denies the mere ability to make any complaint at all.
122 In my view, however, any submitted inconsistency between the evidence of these witnesses does not preclude admission of the evidence of Mr Bhardwaj, Mr Ogg and Mr Ly concerning Mr Ford’s representations pursuant to s 64(3) of the Evidence Act. Inconsistency is, of course, an issue which goes to credit and weight.
123 Otherwise – as a general proposition, I consider there is value in admitting this hearsay evidence in this proceeding in accordance with s 60 of the Evidence Act, being relevant otherwise than as proof of asserted facts, and for non-hearsay purposes including:
credit of witnesses; and
to the extent that evidence of Mr Ford’s emotional state at certain times is relevant – evidence which is otherwise hearsay is admissible in relation to explaining that emotional state.
Relevance
124 A great deal of the evidence on which the applicant relied was the subject of objections by the respondents on the basis of relevance. I note:
evidence of Mr Ford (for example: “I disagree that there were always sufficient keys to lock out the trucks”);
evidence of Mr Bhardwaj (for example: “Mole frequently used abusive language towards me and other employees, particularly new employees”);
evidence of Mr Ogg (for example: “Workers often asked other workers who had come back from the office why they had been in the office”);
evidence of Mr Ly (for example: “Employees at Inghams other than Waldock, Rafferty and Mole did similar things to each other”); and
evidence of Ms Hanner (for example: “When Richard started at Inghams his usual routine was to get up for work at around 9.30 am-10 am and leave for work at 12 noon. Before work he used to potter around the house, muck around in the shed or take our dogs for a walk. About six months before finishing at Inghams I noticed that Richard was waking up later and later in the day and wouldn’t do any household chores or activities before he left for work”).
125 There is merit in the objections by the respondents that some of the evidence of these witnesses may not rationally affect the assessment of the existence of a fact in issue in the proceeding in terms of s 55 of the Evidence Act. Nonetheless, I consider it premature to rule out evidence of these witnesses on the ground of relevance. In particular:
to the extent that the evidence of these witnesses is expressed in vague terms, it is little different to evidence commonly given in civil proceedings in the absence of documentary evidence and perfect recollection;
there are instances where a statement which may otherwise appear to lack relevance forms part of the narrative (such as the example I have just given in respect of evidence of Mr Ford);
the evidence of these witnesses should be read as a whole, and in context, noting that there is uncontested evidence before the Court that many of the witnesses are unsophisticated, and that Mr Ford himself has historically suffered from mental health conditions; and
there is potential value in the evidence of Mr Bhardwaj, Mr Ogg, Mr Ly and Ms Hanner as supportive of the applicant’s claims.
Unfairly prejudicial and/or misleading
126 A great deal of the evidence on which the applicant relied was the subject of objections by the respondents on the basis that the evidence was unfairly prejudicial and/or misleading. I note:
evidence of Mr Ford (for example: “As I have described above in my affidavit, leading hands and supervisors had either witnessed sexual harassment or had it done to them”; and, “I also was mindful that if I told my supervisors I was injured that I would be targeted for having an injury because the supervisors didn't have tolerance for people who were injured”);
evidence of Mr Bhardwaj (for example: “He knew or should have knowledge that sexual harassment was happening because these acts were happening all the time to all the others in the red area”);
evdence of Mr Ogg (for example: “dry-hump is a well-known expression at Inghams”);
evidence of Mr Ly (for example: “This conduct happened a lot at work. It was a problem”); and
evidence of Ms Hanner (for example: “He is constantly fixated on Inghams and the incidents which happened while he was working there”; “Dr Muhammed provided a letter to take with us to the hospital explaining that Richard was suicidal”; and, “I didn’t realise just how depressed he was”).
127 Again, I consider there is merit in the submissions of the respondents concerning much of the evidence of the witnesses of the applicant. However to the extent that the respondents were represented by experienced lawyers who made detailed submissions on their behalf, there is little danger of the Court being misled or confused by evidence relied on by the applicant: cf observations of Lord Wright in Powell v Streatham Manor Nursing Home [1935] AC 243 at 267.
128 As I informed the parties at the hearing, it is my preference to admit this, and similar evidence, and to view it through the prism of appropriate weight and the credibility of the relevant witness. Accordingly, notwithstanding the objections of the respondents, I consider the evidence of the applicant’s witnesses admissible.
Tendency or coincidence evidence
129 The applicant claimed that activities associated with what was once known at Inghams Murarrie as “Gay Friday” were so widespread at relevant times in the Red Area as to constitute a “culture” in that area of the Inghams workplace. Relevant evidence included allegedly similar experiences to those claimed by Mr Ford, which witnesses deposed they had had at Inghams, and conduct witnesses had allegedly observed directed at workers other than Mr Ford. In particular, the applicant pointed to evidence of Mr Ly, Mr Bhardwaj and Mr Ogg, and to some extent, Mr Rafferty.
130 In addition to this, the applicant submitted that evidence of Mr Ly, Mr Bhardwaj, Mr Ogg and Mr Rafferty demonstrated the propensity of Mr Rafferty, Mr Waldock and Mr Phillips to engage in certain types of conduct.
131 The question whether evidence relied on by the applicant (to demonstrate “culture” and propensity for the purposes of Pt 3.6 of the Evidence Act) was inadmissible crystallised as an issue in dispute in the trial during case management on 9 April 2019.
132 On the first day of the hearing after an exchange with both Counsel concerning the relevance of historical conduct, I had the following exchange with Counsel:
HER HONOUR: Mr Reidy, I understand, said that a purpose, not necessarily the purpose, or one of the purposes of the pleadings in paragraph 14(a) and (b) were so that the respondents would not be taken by surprise if conduct from those periods of time were raised in evidence; is that an accurate representation of what you said, Mr Reidy?
MR REIDY: Yes, your Honour.
HER HONOUR: Right. What do you say to that?
MS REECE: Well, your Honour, we’re not taken by surprise because it has been on affidavit for over – I think it’s 18 months now that the applicant sought to rely on this earlier period. But the objection remains the same to the reliance on it for the case itself. The concern, I suppose, that I have, your Honour, is the actual basis on which that evidence of conduct prior to August of 2015 is to be admitted. The concern that I have or the respondent has is that really in a sense it may be sought – when my learned friend refers to a narrative, these additional complaints about Waldock and Rafferty and Phillips, for example, really ultimately may have the effect of tendency evidence by a back route, because the narrative isn’t just this is a culture in which – it’s not evidence simply about a culture in which this kind of conduct was ongoing at Inghams.
It’s really individual complaints about the respondents and their actual conduct, which would then in some way presumably have to be taken into account in assessing whether or not the conduct alleged from August of 2015 could be made out. So it does raise some difficulties in terms of the prism through which or the context in which your Honour is considering the evidence as it’s given.
(Transcript p 28 ll 16-42.)
133 On the second last day of the hearing, Mr Reidy for the applicant applied, to the extent necessary, for dispensation from the notice requirements pursuant to s 100(1) of the Evidence Act.
Submissions of the applicant
134 In closing submissions the applicant identified relevant conduct demonstrating propensity as follows:
158. The evidence is that Mr Rafferty has regularly been seen to engage in the following conduct:
(a) Dry humping on Mr Rafferty’s own peculiar description with his friends Mr Waldock and Mr Phillips – evidence of Mr Rafferty;
(b) Touching Richard on the bottom on many occasions – evidence of Mr Ly;
(c) Dry humping according to the ordinary understanding on Richard on a few occasions and Mr Ly when he was in the feather room cleaning – evidence of Mr Ly;
(d) Dry humping according to the ordinary understanding on Mr Waldock – evidence of Mr Ogg;
(e) Dry humping Mr Ogg – evidence of Mr Ogg;
(f) Dry humping according to the ordinary understanding on Mr Lucht on two occasions – evidence of Mr Bhardwaj;
(g) Dry humping according to the ordinary understanding on Richard, and the same thing happening to Mr Bhardwaj – evidence of Mr Bhardwaj;
(h) Pretending to have anal sex with workers on many occasions, with Richard on a few occasions and Mr Ly when he was in the feather room cleaning – evidence of Mr Ly;
(i) Pretending to have anal sex with workers, including Richard – evidence of Mr Bhardwaj;
(j) Pretending to have anal sex with Richard – evidence of Mr Ogg;
(k) Pretending to have oral sex with various workers on many occasions, with Richard on a few occasions and Mr Ly when he was in the feather room cleaning – evidence of Mr Ly;
(l) Poking a finger into the anus of a worker including Mr Waldock on a few occasions, into Richard’s anus and into Mr Ly’s anus when he was in the feather room cleaning – evidence of Mr Ly;
(m) Poking his finger into the bottoms of other workers – evidence of Mr Bhardwaj;
(n) Poking a finger into the anus of Mr Waldock – evidence of Mr Ogg;
(o) Grabbing Richard in the area of the penis or genitals on many occasions, at least once a week and also doing the same to Mr Ly when he was in the feather room cleaning – evidence of Mr Ly;
(p) Cupping Mr Waldock’s testicles – evidence of Mr Ogg;
(q) Cupping Mr Ogg’s testicles – evidence of Mr Ogg;
(r) Touched and rubbed Richard on the groin area on the outside of his work pants and has done the same things to Mr Bhardwaj – evidence of Mr Bhardwaj;
(s) Rubbing of genitals while wearing clothing on other workers on many occasions, on Richard on a few occasions and also doing the same to Mr Ly when he was in the feather room cleaning – evidence of Mr Ly;
(t) Richard hugged by Rafferty with his arms trapped and Mr Waldock coming out from behind and touching his bottom, with the same thing happening to Mr Bhardwaj – evidence of Mr Bhardwaj;
(u) Pulling Richard's pants down on more than one occasion – evidence of Mr Ogg.
159. The evidence is that Mr Waldock has regularly been seen to engage in the following conduct:
(a) Dry humping according to the ordinary understanding on Richard on a few occasions and Mr Ly when he was in the feather room cleaning – evidence of Mr Ly;
(b) Dry humping according to the ordinary understanding on Richard, and the same thing happening to Mr Bhardwaj – evidence of Mr Bhardwaj;
(c) Dry humping according to the ordinary understanding on Mr Rafferty – evidence of Ogg;
(d) Dry humping Mr Ogg – evidence of Mr Ogg;
(e) Touching Richard on the bottom on many occasions- evidence of Mr Ly;
(f) Pretending to have anal sex with workers on many occasions – the evidence of Mr Ly;
(g) Pretending to have anal sex with Richard – evidence of Mr Ogg;
(h) Pretending to have oral sex with various workers on many occasions, with Richard on a few occasions and Mr Ly when he was in the feather room cleaning – evidence of Mr Ly;
(i) Poking a finger into the anus of a worker including Mr Rafferty on a few occasions, into Richard’s anus and into Mr Ly’s anus when he was in the feather room cleaning – evidence of Mr Ly;
(j) Poking his finger into the bottoms of other workers, including Mr Bhardwaj on one occasion – evidence of Mr Bhardwaj;
(k) Poking a finger into the anus of Mr Rafferty – evidence of Mr Ogg;
(l) Poking a finger into the anus of Mr Ogg – evidence of Mr Ogg;
(m) Grabbing Richard in the area of the penis or genitals on many occasions, at least once a week and also doing the same to Mr Ly when he was in the feather room cleaning – evidence of Mr Ly;
(n) Cupping Mr Rafferty’s testicles – evidence of Mr Ogg;
(o) Touched and rubbed Richard on the groin area on the outside of his work pants and has done the same things to Mr Bhardwaj – evidence of Mr Bhardwaj;
(p) Rubbing of genitals while wearing clothing on other workers on many occasions, on Richard on a few occasions and also doing the same to Mr Ly when he was in the feather room cleaning – evidence of Mr Ly;
(q) Pulling Richard's pants down on more than one occasion – evidence of Mr Ogg.
160. The evidence is that Mr Phillips has regularly been seen to engage in the following conduct:
(a) Mr Phillips has touched and patted Richard on the bum on many occasions and Mr Bhardwaj has experienced similar conduct – evidence of Mr Bhardwaj;
(b) Mr Phillips has touched and rubbed Richard on the groin area on the outside of his work pants and has done the same things to Mr Bhardwaj – evidence of Mr Bhardwaj;
(c) Dry humping Mr Ogg – evidence of Mr Ogg;
(d) Pretending to have anal sex performed on him by Mr Rafferty – evidence of Mr Bhardwaj;
(e) Poking his finger into the bottoms of other workers, including Mr Bhardwaj on two occasions – evidence of Mr Bhardwaj;
(f) On three separate occasions in the locker room, engaging in exhibitionism of his genitals by displaying his genitals to nearby workers and saying “check out my balls” and exposing his testicles – evidence of Mr Bhardwaj;
(g) Exposing his genitals from under his undies in the locker room and putting them close to the face of another employee Bijo – evidence of Mr Ogg;
(h) Exposing his genitals from under his undies in the locker room and putting them close to the face of Kelvin Lucht – evidence of Mr Ogg.
135 In respect of such evidence, the applicant contended in written submissions:
161 The conduct that the witnesses have either been subjected to or observed for each of the three individuals is identical to the conduct alleged by Richard. The conduct includes conduct engaged in against each of the witnesses and conduct observed by the witnesses engaged in against other employees. It also includes conduct the witnesses observed which was engaged in against Richard. The conduct has significant probative value in determining whether it is more likely than not that each of Mr Rafferty, Mr Waldock and Mr Phillips engaged in a particular conduct alleged against them.
136 The applicant also made submissions in respect of relevant principles of “tendency evidence” at [26]-[33] of their closing submissions. However, those submissions do not indicate how the relevant principles applied to the evidence adduced by the applicant.
137 At [23]-[25] of their closing submissions, however, the applicant advanced the proposition that evidence of Mr Ly, Mr Bhardwaj and Mr Ogg relating to persons other than Mr Ford was also admissible for non-tendency purposes. In particular, the applicant submitted:
24. The evidence is relevant and admissible for a number of non-tendency purposes:
(a) The issue of vicarious liability for s 106(1) of the SDA for the issue whether the employer took all reasonable steps to prevent the employee from doing acts of sexual harassment to show the behaviour was endemic and long standing giving rise to the inference that further measures should have been taken and reasonable steps weren’t taken.
(b) The evidence establishes a system or culture of practices that was initially referred to as Gay Friday from which an inference can be drawn that the events described by Mr Ford were part of that system or culture.
(c) Putting other evidence in context by establishing the narrative of events.
(d) The evidence is circumstantial evidence. It is admissible against the respondents as “forming a component in combination of circumstances which is unlikely to occur without fact in issue also occurring. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved”: Martin v Osborne (1936) 55 CLR 367 at 375 per Sir Owen Dixon.
(e) The evidence has non-tendency relevance to establish system, culture, habit or usual practice in the workplace. Mr Rafferty in his evidence on more than one occasion refers to it as the “culture”.
138 The applicant also submitted that evidence of a “system” may be non-tendency evidence, relying on Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 at [67].
Submissions of the respondents
139 In respect of tendency, the respondents relevantly submitted as follows:
46. The Applicant's submissions are misguided. At no point has the Applicant identified what evidence is given by a witness about either the character, reputation or conduct or a person, or the tendency of a person, or how those matters are a fact in issue. Despite not particularising that evidence, the Applicant’s submissions refers to the use the Court can make of such evidence 15 times.
47. The Applicant’s submissions invite the Court to deploy unidentified tendency evidence to substantiate findings of particular conduct even where such conduct is denied both by those said to have done those acts (in respect of the conduct allegations) and those to whom the acts were said to have been done (in respect of both the conduct and incident allegations). The use of tendency evidence in sexual harassment matters is rare.
48. Unfortunately, despite attempts by the Respondents, the Applicant has not identified any response to the Objections Document to indicate acceptance of particular parts of the Applicant’s evidence as tendency (or coincidence, hearsay or other objection). If the Applicant does not accept the evidence as objectionable, the Court cannot accept that notice, a formal process under the Evidence Act, has been given to the Respondents.
(Footnotes omitted.)
140 In respect of the use of evidence to establish a “culture”, the respondents submitted as follows:
49. The Applicant submits that evidence he leads “has non-tendency relevance” to establish proof of a system or culture within the First Respondent. That is nonsensical. Evidence must be admitted to prove a fact and is only relevant if the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. A system or culture is not a fact in issue, but a submission or conclusion reached from facts proven. Evidence must be admissible on the basis that it is relevant and tends to substantiate the fact only, not a concept. The submissions on system or culture are flawed for this reason.
141 I also note that, in closing submissions filed prior to the last hearing day of the trial, the respondents objected to the following evidence adduced by the applicant as “tendency and coincidence”:
• Affidavit of Sanan Ly sworn 19 May 2018:
(a) Paragraph 11: “I haven’t seen them or any other employee expose their genitals to Richard. This behaviour does not surprise me because I have seen other employees do the same thing.”
(b) Paragraph 14: “I have experienced similar behaviour. Rafferty and Waldock touched and slapped me on the bottom, poked me up the anus and would pretend to perform sex acts on me when I bent over when I worked with them in the feather room. I did not like this. I kept telling them to stop.”
• Affidavit of Jatin Bhardwaj sworn 19 May 2018:
(c) Paragraph 14: “I observed that Mole continued to make racist remarks to workers through my employment with Inghams.”
(d) Paras 21, 22 and 23:
21. I saw Rafferty pretend to have anal sex with workers. This happened regularly throughout my employment at Inghams. I recall Rafferty walking up to Wade Phillips (Phillips) when Phillips bent over to pick something up off the floor. Rafferty grabbed Phillips by the hips and moved his hips back and forward towards Phillips buttocks in a thrusting motion.
22. I saw Mole, Rafferty, Waldock and Phillips poke their fingers in the bottom of other workers. This happened in the feather room. They also did this to me.
23. Waldock and Phillips frequently pulled down their pats in the locker room and exposed their genitals to workers who were nearby. On separate occasions I heard both Phillips and Waldock say “check out my balls” and proceed to pull down their pants and expose their testicles.
(e) Paragraph 31: “Mole frequently used abusive language towards me and other employees, particular new employees.”
(f) Paragraph 32: “I heard Mole tell other employees to ‘go back to your country’”… “Mole frequently made racist remarks about people and their ethnic background.”
• Affidavit of Kahu Ogg sworn 18 May 2018:
(g) Paragraph 2: “I am very concerned about my employment. I do not want to lose or jeopardise my job.”
• Affidavit of Kahu Ogg sworn 16 October 2018:
(h) Paragraph 10:
In addition to the behaviour described in my 18 May affidavit and 6 August affidavit, I recall the following incidents which happened to me during my employment with lnghams
(a) Waldock, Rafferty and Phillips dry humped me approximately twice a week.
(b) Waldock and Rafferty cupped my testicles and genital area. This happened to me about once per week.
(c) Waldock and Rafferty poked me up the anus with their fingers. This happened to me about twice a month.
(d) Waldock patted me on the buttocks while I was working and asked me to "pass it on" to other workers. If I did not pat another worker on the buttocks and "pass it on", Waldock continued to pat me on the buttocks until I did so. I "passed it on" by patting another worker near me on the buttocks. This happened to me at least three times a week. It used to happen almost every day when I started at lnghams and on every Friday because this behaviour was part of the "Gay Fridays" behaviour described in paragraph 8 of my 18 May affidavit
(i) Paragraph 13: “I found the behaviour described in paras 9 to 12 above uncomfortable and I did not like it. I told the perpetrators to stop. On some occasions I told them to "piss off' or "fuck off'. It did not matter what I said and did because the behaviour continued.”
(j) Paragraph 14:
In addition to the behaviour described in my 18 May affidavit and 6 August affidavit, I witnessed the following happen to other workers during my employment with lnghams:
(a) Waldock and Rafferty dry humped each other in the feather room at the end of production while workers were replacing broken plucker fingers. This happened about twice a week.
(b) Rafferty touched and grabbed Kelvin Lucht and Glenn Hannett in their genital area. This happened in the feather room and in the locker room approximately once a month. Most times they did not seem upset because they laughed when this happened. Sometimes I heard Mr Lucht and Mr Hannett tell Rafferty to "fuck off".
(c) Phillips pulled his pants down in the locker room exposing his testicles for everyone to see. On at least three occasions, I recall Phillips putting his testicles next to Mr Lucht's face while he was bent over in the locker room. Mr Lucht was unaware of what Phillips was doing and when he turned around, Mr Phillips' testicles came into contact with Mr Lucht's face. This happened in front of other workers. I saw Phillips do the same thing to Mr Hannett.
(d) Waldock and Rafferty dry humped Mr Lucht in the locker room. This happened approximately twice a week.
(k) Paragraph 18: “During my employment at lnghams, I witnessed employees engage in bullying behaviour towards other employees. The main perpetrators of this behaviour were George Mole and Jordan Hill.”
(l) Paragraph 19:
I witnessed Mr Mole engage in the following bullying behaviour:
(a) Mr Mole frequently yelled at employees in an aggressive and threatening manner. He often picked on Jilali Rahiwi, who was an older worker and was slower at hanging compared to the other workers. Mr Mole regularly told him that he was "useless" and "fucking shit" at hanging.
(b) Mr Mole came up to me while I was eating lunch and kicked underneath the chair I was sitting on. He did this for no reason.
(c) Mr Mole called Vaiyama Junior Levaai, who is of Samoan descent a "coconut".
(d) I heard Mr Mole make an insulting comment about Kurt Mahyika's mother that she was overweight.
(m) Paragraph 21: “There was a further reason that I did not make a complaint about the sexual harassment and bullying that was done to me and others. It was because it was obvious when someone in the red area was going to the office to make a complaint. This is because a worker in the red area has to walk off the line and walk upstairs to the office in view of other workers.”
(n) Paragraph 23: “People who complained to management were labelled a "narc" by workers in the red area. For example, I recall an incident when Mr Ford was called a narc. The background is that Mr Ford had told me that management had called Mr Ford up to the office and asked him whether he had seen Anthony Collett smoking in a non-designated smoking area. Mr Ford told me that he told management that he had seen Mr Collett do this. After Mr Ford told me this, it became common knowledge that Mr Collett received a warning. It was clear to me that Mr Collett must have found out that Mr Ford had spoken to management because I heard Mr Collett call Mr Ford a "narc" in front of other workers in the red area for doing so.”
• Affidavit of Richard Jamie Lee Ford sworn 4 June 2018:
(o) Paragraph 125: “I noticed that they did it to other workers.”
(p) Paragraph 298: “I knew a co-worker Anthony Perekeiko who had a shoulder injury. Rafferty had told me that Kelvin Lucht the leading hand had said Anthony Perekeiko was lazy even though he had an injury.”
(q) Paragraph 315: “It appeared to me that Rafferty and Waldock could do any disgusting sexual thing they wanted to other employees and that there was nothing that could be done about it.”
(r) Paragraph 356: “Jason told me that he was aware of the culture of sexual harassment and abusive language that was directed at employees who worked in the Red Area at Inghams.”
(s) Paragraph 357: “In early August 2016, to the best of my recollection, I also spoke with Jenna Mae Horne, a training officer with the WH&S unit at lnghams about the sexual harassment. I was in the break room undertaking training with Ms Horne. Ms Horne was training to take over the supervisor role. She said that she had observed how Rafferty, Waldock, Flanders and Mole appeared to be part of a clique and she didn't like the way they spoke to each other and to the other workers. She said words to the effect that she thought Flanders manipulated and played mind games with the other workers. She told me that she didn't like how Mole was a bully at work. She said that she had spent time with Mole outside of work and he didn't behave like this on those occasions.”
(t) Paragraph 388: “Just after the digital anal assault by Rafferty in November 2015, he disclosed to me in a conversation that the sexual harassment culture at Inghams had been going on for a long time and that it was entrenched at Inghams. He told me that I was getting off lightly compared to what he had gone through. Rafferty told me that Flanders had harassed an ex-employee so badly that the employee chased him around with a knife.”
• Affidavit of Richard Jamie Lee Ford sworn 6 August 2018:
(u) Paragraph 8: “In relation to paragraph 32 of the Rafferty Affidavit, I disagree that Rafferty only engaged in the conduct described in paragraph 28 of the Rafferty Affidavit when it was done to him first. The conduct described in paragraph 28 of the Rafferty Affidavit and my 4 June 2018 affidavit was frequently initiated by Rafferty at random and without any encouragement from other workers. For example, towards the end of my employment, I recall working on line 2 with Rafferty and another worker Dougal. Rafferty and I were standing about one metre apart facing the platform stand, while Dougal was standing up on the platform pulling out feathers on line 2. Rafferty proceeded to poke Dougal in the anus. Dougal turned around and looked angry and annoyed. No one had engaged in any sexual conduct towards Rafferty before he did this act to Dougal.”
Consideration
142 The parties in their submissions conflated “tendency” and “coincidence”, and the extent to which evidence of relevant witnesses demonstrated either propensity of the respondents to engage in the type of conduct alleged by Mr Ford, or a “culture” which increased the likelihood that such conduct occurred. This is not surprising given that Pt 3.6 of the Evidence Act deals with both tendency and coincidence, and the matters for the Court to take into account (in s 97(1)(a) and 97(1)(b) and s 98(1)(a) and 98(1)(b)) as well as the exceptions to operation of the respective rules (in s 97(2) and s 98(2)) as set out in the Evidence Act, are the same. The absence of particularity in the submissions of the applicant in respect of evidence relied on to demonstrate a “culture” is, however, unhelpful.
143 Relevantly, Pt 3.6 of the Evidence Act provides:
94 Application
(1) This Part does not apply to evidence that relates only to the credibility of a witness.
(2) This Part does not apply so far as a proceeding relates to bail or sentencing.
(3) This Part does not apply to evidence of:
(a) the character, reputation or conduct of a person; or
(b) a tendency that a person has or had;
if that character, reputation, conduct or tendency is a fact in issue.
95 Use of evidence for other purposes
(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.
96 Failure to act
A reference in this Part to doing an act includes a reference to failing to do that act.
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Paragraph (1)(a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100; or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
Note: The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
98 The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Note: One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
(2) Paragraph (1)(a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100; or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.
Note: Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.
99 Requirements for notices
Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.
100 Court may dispense with notice requirements
(1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party’s failure to give notice under section 97.
(2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party’s failure to give notice under section 98.
(3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice.
(4) In a civil proceeding, the party’s application may be made without notice of it having been given to one or more of the other parties.
(5) The direction:
(a) is subject to such conditions (if any) as the court thinks fit; and
(b) may be given either at or before the hearing.
(6) Without limiting the court’s power to impose conditions under this section, those conditions may include one or more of the following:
(a) a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each other party other than a specified party;
(b) a condition that the party give such notice only in respect of specified tendency evidence, or all tendency evidence that the party intends to adduce other than specified tendency evidence;
(c) a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence.
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
144 The effect of ss 97 and 98 of the Evidence Act is that tendency evidence, or alternatively coincidence evidence, is admissible if:
reasonable notice was given of the intention to adduce such evidence; and
the Court is of the view that the evidence has significant probative value, either by itself or having regard to other evidence.
145 In Hoyle v The Queen (2018) 339 FCR 11; [2018] ACTCA 42 the Court of Appeal of the Australian Capital Territory explained key differences of reasoning in considering coincidence evidence and tendency evidence as follows:
165. In theory, there is a clear difference between coincidence and tendency reasoning.
166. Coincidence reasoning involves a direct comparison of two or more similar events. It reasons that the events are so similar that it is improbable that they happened coincidentally. It may refer to a “modus operandi” or a “pattern of conduct”.
167. On the other hand, tendency reasoning is indirect. It looks to whether evidence establishes a tendency to act in a particular way or have a particular state of mind. If the tendency is established, the tendency becomes a circumstance that may inform whether a charged event occurred. Theoretically, evidence of conduct that is quite different from the charged conduct may nevertheless support a tendency that is probative of whether the charged conduct occurred. In practice, evidence of conduct that is similar to the charged conduct is more likely to support a specific tendency that is significantly probative of whether the charged conduct occurred. This practical consideration may encourage shortcut reasoning: that conduct on one occasion is probative of whether very similar conduct occurred on another occasion.
168. In Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481 at [43], Basten JA commented on the difficulty of separating the concepts of tendency and coincidence in cases where the issue is not the identity of the alleged offender but the occurrence of the alleged events. In Hughes at [43], the Court noted the possibility of overlap between tendency and coincidence reasoning where the prosecution sought to rely on the improbability of several complainants falsely making similar allegations of sexual impropriety.
146 In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, the majority of the High Court noted that common law principles governing the admission of similar fact evidence had been abrogated and replaced by Pt 3.6 of the Evidence Act (at [31]). In respect of tendency evidence, their Honours discussed the concept of significant probative value, and noted that tendency evidence would have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent (see also IMM v The Queen (2016) 257 CLR 300; [2016] HCA 4 at [46]). Of particular relevance to the proceedings currently before me, their Honours continued:
16. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove.
147 Principles guiding the reception of tendency evidence were discussed in detail by Greenwood J in McIlwain v Ramsey Food Packaging (2006) 154 IR 111; [2006] FCA 828. In that case, the Employment Advocate under the Workplace Relations Act 1996 (Cth) sought a declaration that employers of labour at an abattoir engaged in contraventions of s 298K of that Act in either terminating employees, or refusing to employ individuals, for reasons which were or included prohibited reasons. The Employment Advocate sought to rely on evidence that one of the employers had a tendency to adopt a particular state of mind, thereby making it more likely than not that he had the state of mind when engaging in the relevant dismissal or refusal conduct. After examining s 97 of the Evidence Act and the meaning of “probative value”, his Honour said in the appendix to the judgment:
20 Ultimately, “the probative value of the evidence as tendency evidence must depend upon the circumstances of the case. The factors to be taken into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency ... and the extent to which that tendency increases the likelihood that the fact in issue occurred”: Jacara v Perpetual Trustees (supra), Sackville J, paragraph [76].
21 The evidence, however, must first satisfy the characterisation as evidence of conduct on the part of Mr Ramsey or a tendency that Mr Ramsey has or had to act in a particular way or embrace a particular state of mind. That evidence must be relevant, that is, capable rationally of effecting the assessment of the probability of the existence of a fact in issue in the proceeding and the extent of the probative value must be significant. In making an assessment of whether the evidence reveals facts similar to the fact in issue (thus making the evidence relevant), Gummow J has drawn attention to the importance of identifying the materiality of the similar features as commonality of features may not necessarily reveal a feature relevant to the question immediately in controversy: D F Lyons Pty Ltd v Commonwealth Bank (1991) 28 FCR 597. For example, does the tendency evidence reveal a state or attitude of mind of Mr Ramsey concerning matters directly related to the reason for the dismissal conduct and the contended refusal to employ or is the evidence more general, more broadly based and perhaps of little probative value? A fact “is similar to another only when the common characteristic is the significant one for the purpose of the inquiry at hand”: D F Lyons v Commonwealth Bank (supra), Gummow J at 476.
148 After observing that the reasons for engaging in the relevant conduct lay within the mind of the relevant decision-maker, and that person’s state of mind could only be established as a conclusion based on inferences drawn from evidence of conduct or expressions of attitude towards matter relevant to the ultimate facts, his Honour continued:
22. …Such inferences might be drawn out of many examples of conduct or expressions of attitude and in that sense be collectively of significant probative value so as to make the Court reluctant to affirmatively conclude that the tendency evidence “would not have significant probative value” for the purposes of s.97 of the Evidence Act.
23 In such a case and where statements have been exchanged for some considerable time prior to trial so that lengthy notice has been given of the tendency evidence and no prejudice in responding to the evidence arises, the Court may well be reluctant to make an affirmative finding of exclusion but rather admit the evidence and assess weight (that is, the ultimate significance of the probative value) in the overall balancing of all the evidence, particularly when the assessment is made after the trial has concluded.
(Emphasis added.)
149 Mr Ford placed particular reliance on the observation of Greenwood J at [23] concerning the potential reluctance of the Court to make an affirmative finding of exclusion of such evidence.
150 In respect of the oral interlocutory application by the applicant, pursuant to s 100 of the Evidence Act, to dispense with requirements of notice under Pt 3.6, and to admit the relevant evidence as tendency or coincidence evidence, I make the following observations.
151 As I have already noted, in the absence of a properly crafted notice in writing – either reasonable or otherwise – pursuant to s 97 and s 98 of the Evidence Act, it is very difficult to know on exactly which evidence Mr Ford seeks to rely by way of tendency, or by way of coincidence, or even potentially both. Indeed, somewhat ironically, I find the objections of the respondents more helpful, in that the respondents have at least identified specific evidence as objectionable as contravening the tendency rule in s 97 of the Evidence Act. It is unclear to me whether the applicant also seeks to rely on evidence filed in June 2019 (and additional to that specifically identified by the respondents) as demonstrating tendency or coincidence, however I assume that he does.
152 The absence of a properly crafted reasonable notice in writing leads to precisely the problem identified by Gageler J in Hughes v The Queen at [105] in relation to identical provisions in New South Wales legislation, namely:
Making the evaluative judgment required of a court in the implementation of the tendency rule is facilitated by the procedural requirement that a party must ordinarily give notice of an intention to seek to adduce tendency evidence. The utility of the tendency notice goes beyond providing procedural fairness to other parties. The tendency notice provides the court, at the critical time of assessing the admissibility of tendency evidence, with a statement of the particular tendency which the party seeking to adduce the tendency evidence seeks to prove by it. The importance of explicitly identifying in the notice the particular tendency that is asserted, as Howie AJ put it in Bryant v R, “should be obvious: how else is the court going to be able to make a rational decision about the probative value of the evidence”. By identifying the particular tendency that the evidence is asserted to prove, the notice allows the court to evaluate the strength of the connection between the evidence and the tendency and the strength of the connection between the tendency and the fact in issue.
(Citations omitted, emphasis added.)
153 The problematic lack of detail in the applicant’s case in respect of tendency is highlighted by reference to the formal requirements for notice stipulated in reg 7 of the Evidence Regulations 2018 (Cth) (which addresses the notice requirements under s 99 of the Evidence Act). Regulation 7 provides:
7 The tendency rule and the coincidence rule—form of notices
(1) This section is made for the purpose of section 99 of the Act.
(2) A notice given under subsection 97(1) of the Act (relating to the tendency rule) must state:
(a) the substance of the evidence of the kind referred to in that subsection that the party giving the notice intends to adduce; and
(b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of:
(i) the date, time, place and circumstances at or in which the conduct occurred; and
(ii) the names of each person who saw, heard or otherwise perceived the conduct; and
(iii) in a civil proceeding—the address of each person so named;
so far as they are known to the notifying party.
(3) A notice given under subsection 98(1) of the Act (relating to the coincidence rule) must state:
(a) the substance of the evidence of the occurrence of 2 or more events that the party giving the notice intends to adduce; and
(b) particulars of:
(i) the date, time, place and circumstances at or in which each of those events occurred; and
(ii) the names of each person who saw, heard or otherwise perceived each of those events; and
(iii) in a civil proceeding—the address of each person so named;
so far as they are known to the notifying party.
(4) ….
(5) The direction may be given on the terms the court considers appropriate.
154 To the extent that the applicant has sought to rely on evidence as demonstrating tendency or coincidence, the applicant did so in closing submissions, and in the most general of terms. The submissions of the applicant referring to general classes of evidence (for example, “Mr Phillips has touched and patted Richard on the bum on many occasions and Mr Bhardwaj has experienced similar conduct – evidence of Mr Bhardwaj”) are of some assistance however that assistance is very limited. Such submissions in no way comply with reg 7 of the Evidence Regulations.
155 The absence of a properly articulated notice also has the result that the precise tendency on the part of witnesses which the applicant seeks to prove by its allegations of “tendency evidence” is unclear.
156 This generality militates against admission of evidence for the purposes of tendency or coincidence reasoning.
157 There are, however, a number of factors favouring the admission of evidence on which the applicant seeks to rely as demonstrating tendency or coincidence.
158 First, in considering dispensation with the provisions of Pt 3.6 of the Evidence Act, the extent to which the respondents had notice of the evidence on which the applicant intended to rely was relevant: Toben v Jones (2003) 129 FCR 515; [2003] FCAFC 137 at [168]. In this case, the primary evidence on which the applicant relies is, I understand, primarily in the filed affidavits, of which the respondents had substantial notice prior to the hearing.
159 Second, a relevant consideration in determining whether the Court should dispense with the requirement for notice is whether the respondents would suffer prejudice if the Court were to do so: R v Harker [2004] NSWCCA 427 at [35]. In respect of the prejudice caused to a party, it is not the prejudice resulting from the nature of the evidence that is relevant – rather it is the prejudice caused by the failure to give reasonable notice: R v Harker [2004] NSWCCA 427 at [44]. There may be little prejudice to a party, despite the failure to give formal notice as required by s 99, if notice of the intention to adduce the tendency evidence was given: Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579 at [19].
160 In the circumstances, I consider there to be little prejudice to the respondents if the formal notice requirements were waived. I have come to this conclusion in circumstances where:
It is apparent that the respondents were aware of the evidence of the applicant’s witnesses (including the fact that tendency evidence would be sought to be adduced) for a number of months.
The respondents adduced evidence to rebut the tendency evidence of the applicant’s witnesses, filing:
(a) evidence in relation to whether the incidents involving Mr Ford occurred;
(b) evidence as to whether other incidents alleged by the applicant’s witnesses occurred; and
(c) evidence concerning whether similar conduct generally occurred at Inghams.
It is difficult to see what further evidence the respondents would have adduced had they received formal notice under s 99 of the Evidence Act.
Whilst the particular tendency the evidence is asserted to prove has not been identified, it is relatively apparent from the Agreed Issues for determination that the tendency evidence would be relied on by the applicant to substantiate his allegations in Agreed Issue 1.
161 Third, in determining the admissibility of the evidence on which the applicant sought to rely as tendency or coincidence, the better approach in determining admissibility for the purposes of ss 97 and 98 appears to be that evidence should be taken at its highest. As explained in Cross on Evidence (12th ed, LexisNexis Butterworths, 2020) at [21252], pp 827-828, by reference to the approach in New South Wales:
… The court does not usurp any of the jury’s functions, but makes a decision of law about the reasoning processes that are open to a jury. The question is whether the evidence is capable, to a significant degree, of rationally affecting the assessment by the trier of fact of the probability of the existence of a fact in issue. When determining “probative value” in s 97 (and ss 98, 101….) the court should generally not take into account issues of credibility and reliability, but take the evidence at its highest. In assessing whether there is significant probative value the real possibility of concoction, contamination or innocent infection should not be considered. Here, too, the court does not usurp any of the jury’s functions, but makes a decision of law about the reasoning processes that would be open to the jury. The admissibility question is whether there is evidence capable of establishing the matters described in the first part of s 98(1); the jury question is whether it actually does.
(Footnotes omitted, emphasis in original.)
162 In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority said:
49. The same construction must be given to the words “could rationally affect [...] the assessment of the probability of the existence of a fact in issue” where they appear in the definition of “probative value” as is given to those words in s 55. This requires an assessment of the capability of the evidence to have the stated effect. And because the question to which those words give rise remains the same for the passages of the definition of “probative value”, that enquiry must be approached in the same way as s 55 requires: on the assumption that the jury will accept the evidence. The words “if it were accepted”, which appear in s 55, should be understood also to qualify the evidence to which the Dictionary definition refers. It is an approach dictated by the language of the provisions and the nature of the task to be undertaken.
50. At a level of logic it is difficult to see how a trial judge could approach the question as to what the probative value of the evidence could be in any other way, for the reasons alluded to by Gaudron J in Adam v The Queen. It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence.
(Footnotes omitted, emphasis added.)
163 In this case it is clear that the credit of the applicant’s witnesses in respect of their evidence of tendency and coincidence is in issue. Indeed, there are numerous examples of evidence given by those witnesses in respect of alleged conduct directed at co-workers, where those co-workers denied that the alleged conduct occurred. However, if the starting point for determining admissibility is the presumption that evidence will be accepted as the majority of the High Court appeared to opine in IMM, the prospect that the evidence of the applicant’s witnesses may ultimately lack credit is no reason at this stage to deny its admission.
164 I note that the probative value of the evidence on which the applicant relies to demonstrate tendency and coincidence is potentially weakened by the fact that, other than Mr Rafferty, Mr Ford specifically identified only three witnesses as giving relevant evidence of tendency, namely Mr Bhardwaj, Mr Ogg and Mr Ly. This may be compared with the large number of witnesses on whose evidence the respondents relied, and whose evidence substantially rebutted the evidence of the applicant’s witnesses (cf observations of Heerey J observed in Australian Competition & Consumer Commission v Commercial and General Publications Pty Ltd [2002] FCA 900 at [39]. Whilst I note that this potentially weakens the probative value of the evidence (cf the approach of the New South Wales Court of Criminal Appeal approved in IMM at [50]), I do not consider the evidence to lack the probative value required for its admission into evidence, as the credit of the witnesses whose evidence rebutted the tendency evidence of Mr Bhardwaj, Mr Ogg and Mr Ly is at this stage similarly in issue.
165 Fourth, the respondents submitted that the admission of tendency evidence in a sexual harassment case was rare, and that Robinson v Goodman [2013] FCA 893 was the first case dealing with contested tendency evidence in a proceeding concerning alleged sexual harassment. In my view the rarity or otherwise of the Court admitting tendency or coincidence evidence in such cases as this is irrelevant – the question is whether the evidence is admissible in terms of ss 97 and 98 of the Evidence Act.
166 In conclusion, Mr Ford contended that, if the Court were not minded to admit the evidence on which he relied to demonstrate tendency and coincidence for that purpose, the evidence was nonetheless relevant and admissible for a number of non-tendency purposes. On balance however, and notwithstanding that evidence on which the applicant relies appears to range over a period of years and is not specifically identified, it is appropriate for me to dispense with the requirement for notice stipulated in s 97(1)(a) and s 98(1)(a) and admit the evidence on which the applicant seeks to rely for the purposes of tendency or coincidence reasoning. In doing so, I particularly note the comments of the majority of the High Court in IMM v The Queen at [48] that the assessment of probative value in this context does not import considerations such as might affect whether the evidence is accepted as credible or reliable. I also note that in this case the respondents were given ample notice of the evidence on which the applicant intended to rely, and appeared to suffer no prejudice in responding to that evidence, such that, as observed by Greenwood J in McIlwain at [23], an affirmative finding of exclusion of evidence for tendency purposes appears premature.
167 This, of course, does not predetermine a finding that evidence on which the applicant relies in support of his case has “real” probative value as explained by the majority in IMM v The Queen at [50]. Rather, the appropriate way forward is now to assess the weight of that evidence in the overall balancing of all evidence in these proceedings.
Deemed admissions
168 A further issue in respect of evidence in this matter concerns the plea of the applicant, in his reply to the amended defence of the first and third to fifth respondents, that the first and third to fifth respondents had made deemed admissions in relation to many pleaded allegations in the RFASOC.
169 The applicant contended that the first and third to fifth respondents are taken to have admitted the allegations in the following paras and subparas of the RFASOC: 6(d), 7(f), 8(c), 9(d), 11(g), 14(e), 14(f), 16(a), 19(a), 23(a), 26(a), 28 to 33, 35(a) and 58 to 61.
170 More specifically, Counsel for the applicant submitted that where the amended defence of the second and third to fifth respondents failed to adhere to r 16.07(3) of the Federal Court Rules 2011 (Cth), by reason of r 16.07(2) the corresponding matter pleaded in RFASOC was deemed to be admitted.
Are any of the allegations in the RFASOC taken to have been admitted by the first and third to fifth respondents?
171 Rule 16.07 of the Rules provides:
Admissions, denials and deemed admissions
(1) A party pleading to an allegation of fact in another party’s pleading must specifically admit or deny every allegation of fact in the pleading.
(2) Allegations that are not specifically denied are taken to be admitted.
(3) However, a party may state that the party does not know and therefore cannot admit a particular fact.
(4) If a party makes a statement mentioned in subrule (3), the particular fact is taken to be denied.
Note This rule requires a party to address each material fact pleaded in an opposing party’s pleading. A general denial or an evasive answer will not be sufficient.
172 By way of example, the following paragraphs in the amended defence of the first and third to fifth respondents were said by the applicant to give rise to deemed admissions:
6. In respect of paragraph 6, the Respondents:
…
(d) do not admit or deny subparagraph (d) but say that the Second Respondent had a good working relationship with other employees with no prior complaints being made against him.
…
11. In respect of paragraph 11, the Seventh Respondent:
…
(g) cannot admit or deny subparagraph (g) given it is incomplete;
…
14. In respect of paragraph 14, the Third Respondent:
…
(e) does not admit or deny subparagraph (e) given it refers to the Second Respondent only;
…
16. In respect of paragraph 16, the Third Respondent:
(a) does not admit or deny subparagraph (a);
…
19. In respect of paragraph 19, the Third Respondent:
(a) does not admit or deny subparagraph (a) and says further than he denies the conduct referred to occurred;
173 In relation to the paragraphs claimed to be admitted, I note:
paras 6(d), 14(e), 14(f), 28, 29, 31, 32 and 58 to 61 related to the conduct of Mr Rafferty;
paras 16(a), 19(a), 23(a), 26(a) and 35(a) concerned whether Mr Ford solicited the alleged pleaded conduct of the respondents;
paras 30 and 33 concerned Mr Ford’s state of mind; and
para 11(g) concerned whether Mr Chan had actual or apparent authority to roster, discipline, supervise, manage, allocate or assign work to Mr Ford, and did in fact appear to be an incomplete sentence.
174 Counsel for the respondents orally submitted, in summary:
The issue had not been raised at any time prior to the hearing, including not in the written submissions of the applicant.
The applicant’s submissions were misconceived, because the matters which were said to be a deemed admission in the pleadings really were matters to which the respondent could not plead in the first place.
In particular, one allegation said to be admitted was whether or not Mr Ford solicited certain pleaded conduct. A party could not plead a response to such an allegation, which could properly be characterised as an argument (rather than an allegation).
In circumstances where the respondents have denied the conduct, the respondents could not meaningfully address the allegation that Mr Ford did solicit the relevant conduct.
175 The respondents did not address the alleged deemed admissions relating to paras 28 to 33 and 58 to 61. I note that subparas 30(c) and 33(d) also, in part, referred to para 20 of the RFASOC, which was denied by the first and third to fifth respondents. I also note that paras 60 and 61 were legal conclusions.
176 The respondents were correct in submitting that a deemed admission in relation to subparas 16(a), 19(a), 23(a), 26(a) and 35(a) of the RFASOC was nonsensical, or perhaps hollow, in circumstances where the conduct which Mr Ford denied that he solicited, is itself denied by the respondents. However, the operation of r 16.07 is very clear: where a matter has been neither admitted nor specifically denied, and does not comply with r 16.07(3) by stating that the matter is unknown, the matter is taken to be admitted by reason of r 16.07(2). The defence of the first and third to fifth respondent is inadequate in this regard. It follows that the allegations in paras 6(d), 7(f), 8(c), 9(d), 11(g), 14(e), 14(f), 16(a), 19(a), 23(a), 26(a), 28 to 33, 35(a) and 58 to 61 of the RFASOC are prima facie deemed to be admitted.
177 A very real question arises however as to the practical effect of those deemed admissions on the part of the first and third to fifth respondents, including in respect of the case against Mr Rafferty.
Effect of deemed admission by the first and third to fifth respondents
178 The High Court in Vale v Sutherland (2009) 237 CLR 638; [2009] HCA 26 relevantly stated:
38. It is true that, as was noted by Lindgren J, nothing in the defence amounted to a “specific denial” or “a statement of specific non-admission”, as required by the applicable court rules (Federal Court Rules (Cth) O 11, r 13(2)) in order to avoid a deemed admission.
39. Nevertheless, the hearing was conducted on the basis that the value of the properties at the time of the transfer which was stated in the Notice was in issue. Counsel for Mr Vale made it clear in his opening address that Mr Vale was challenging the amount stated in the Notice:
… the notice on its face is wrong. It’s wrong (a) as to amount and (b) as to any evidentiary basis upon which you can substantiate what the value is.
40. It is also clear from his closing address outlined above that value was in issue. Furthermore, the Trustee was cross-examined in relation to the value of the properties given in the Notice. Specifically, he was taken through the ramifications of the 1999 valuation, for example:
Then, on page 13, this is in respect of the lot 18 valuation, it values the property, with improvements, at $130,000? — Yes, it does.
Counsel for the Trustee did not object to this line of questioning. The evidence of the disparity between the valuations had been in the Trustee’s possession and was in evidence.
41. In his written submissions to this court the Trustee contends that the determination of whether Mr Vale disputed the value asserted in the Notice “depends entirely” upon whether in his defence he made a “specific denial” or a statement of “specific non-admission” in accordance with the rules, as outlined above. However, in Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd Dawson J noted:
But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. … cases are determined on the evidence, not the pleadings.
Thus, whatever view is taken of the range of issues tendered by the pleadings, it was open to Lloyd-Jones FM to decide the case as he did. No unfairness results to the Trustee from such a result.
(Citations omitted.)
179 Similarly, the Full Court in Adams v Director of the Fair Work Building Industry Inspectorate (2017) 258 FCR 257; [2017] FCAFC 228 stated:
99. In its statement of claim, Fair Work pleaded that the industrial action was not authorized or agreed to by Crown. To that plea each appellant pleaded that “[h]e claims penalty privilege and so does not admit”, the allegation. Rule 16.07 (1) of the Federal Court Rules 2011 (the “Rules”) provides that a respondent must specifically admit or deny every allegation of fact in the applicant’s pleading. Further, r 16.07(2) provides that allegations which are not specifically denied are taken to be admitted. Rule 16.07(3) provides that a party may plead that it does not know, and therefore cannot admit a particular allegation. The current Rules make no other provision for non-admission. The position differs from that considered by Graham J in Hadgkiss v Construction, Forestry, Mining and Energy Union (2005) 146 IR 106. Under O 11 r 13 of the rules then in force, a party could “traverse” an allegation, either by denial or specific non-admission. Graham J considered that a respondent could, under those rules, not admit. However his Honour considered that to decline to plead on the ground that it might incriminate the pleading party would risk deemed admission pursuant to O 11 r 13(1). A non-admission would not have that effect. Under the present Rules, a plea of non-admission is deemed to be an admission. Hence on one view each appellant could be taken to have admitted the allegation that industrial action had not been authorized or agreed to by Crown. Nonetheless the case seems to have been conducted on the basis that the appellants could “not admit” without the consequence that such a plea would constitute an admission. Fair Work accepts that if the appellants point to sufficient evidence from which it could reasonably be inferred that there had been authorization or agreement, it would have to disprove such matters.
180 In closing submissions, the applicant relevantly submitted:
2. According to the last communication from the Respondents’ solicitors, it is assumed that everything is in issue so that the Applicant is being put to proof on every single element of every aspect of the claim.
181 It is also evident from the Agreed Issues for determination provided by the parties that the matters the subject of the alleged deemed admissions are in dispute between the parties. In particular:
the allegation in paragraph 28 of the RFASOC, that in about November 2015 Mr Rafferty inserted his finger into Mr Ford’s anus when Mr Ford was standing in the feather room picking up feathers on line 2; and
the allegation in paragraph 31 of the RFASOC, that in about early 2016 Mr Rafferty forcefully poked Mr Ford in the anus with a squeegee handle when he was standing on a platform in the feather room,
are clearly contentious issues between the parties.
182 The applicant has not claimed that the conduct alleged in paras 28 and 31 of the RFASOC was witnessed by any of the first or third to fifth respondents. In this regard, I note s 83 of the Evidence Act, which provides:
83 Exclusion of evidence of admissions as against third parties
(1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.
(2) The evidence may be used in respect of the case of a third party if that party consents.
(3) Consent cannot be given in respect of part only of the evidence.
(4) In this section:
third party means a party to the proceeding concerned, other than the party who:
(a) made the admission; or
(b) adduced the evidence.
183 Consequently, the deemed admissions by the first and third to fifth respondents that related to the alleged conduct of Mr Rafferty were not admissible as evidence that Mr Rafferty did, in fact, engage in that alleged conduct, in particular at paras 28 and 31 of the statement of claim.
184 Other deemed admissions by the first and third to fifth respondents related to Mr Ford’s state of mind (RFASOC, paras 30 and 33) and whether he solicited (and how he reacted to) the alleged conduct (RFASOC, paras 16(a), 19(a), 23(a), 26(a), 29 and 32). In considering whether knowledge of the fact admitted is required, I note the recent reference by Mortimer and Bromwich JJ in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 to the decision of the High Court in Lustre Hosiery Ltd v York (1935) 54 CLR 134:
47. In Lustre Hosiery, four justices of the High Court (Rich, Dixon, Evatt and McTiernan JJ) observed at pp 138-139:
No doubt an admission made by a party as to the correctness of a fact is admissible in evidence notwithstanding that the party has no direct knowledge of the fact and must rely for his belief upon the statement of others, or upon inferences from circumstances which he knows, or which have been reported to him. But such an admission may indicate a state of mind varying from a firm belief based upon a thorough investigation of the existence or occurrence of the fact down to a wavering preference for one of two or more possible hypotheses none of which have been tested or determined. It is apparent that the admissibility of the evidence must be distinguished from its sufficiency to establish or support an affirmative conclusion in favour of the party who tenders it, when the burden of proof lies upon that party. It does not follow that, because such evidence is admissible, it is enough to prove the issue.
48. Their Honours further observed (at pp 143-4) that such an admission will be admissible whatever the source of the information or belief, but once admitted into evidence “its probative force must be determined by reference to the circumstances in which it is made”, of which personal knowledge of the fact admitted to is but one factor.
49. Thus, informal admissions, such as by conduct, are open to be contradicted or explained, and the weight to be given to them is a matter for the tribunal of fact to determine.
(Emphasis added.)
185 In the circumstances of this case, despite the admissions of the first and third to fifth respondents concerning the state of mind of Mr Ford or his solicitation of conduct, the admissions would appear to lack sufficient weight to support an affirmative conclusion in relation to those matters.
186 Also relevant in this regard is r 1.34 of the Rules, which provides:
Dispensing with compliance with Rules
The Court may dispense with compliance with any of these Rules, either before or after the occasion for compliance arises.
187 An order of the Court dispensing with the requirements of r 16.07 may be sufficient to prevent a deemed admission resulting from non-compliance with that rule. In this respect, I note the comments of Gray J in Australian Competition and Consumer Commission (ACCC) v Francis (2004) 142 FCR 1; [2004] FCA 487:
42. The question therefore arises whether the court has power to relieve the respondent from what would otherwise be the consequences of failure to comply with the rules, namely that he is deemed to have made admissions. Order 1 r 8 of the Federal Court Rules provides:
The Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises.
It is noteworthy that, on its face, this power is limited to dispensing from compliance. It does not provide expressly for the court to relieve a person from the consequences of non-compliance. Older-style rules of court, such as the former O 70 r 1A of the Supreme Court Rules (Vic), contained such an express power. Order 64 r 2 of the High Court Rules (Cth) still contains an express power to relieve a party from the consequences of non-compliance with a rule. The modern form of the dispensing rule is found in O 1 r 8 of the Federal Court Rules, as well as in O 2 r 2.04 of the Supreme Court Rules (Vic) and Pt 1 r 12 of the rules of the Supreme Court of New South Wales. The difficulty of a rule in the modern form is that it does not expressly provide a power to modify or undo altogether consequences attached by the rules to non-compliance, where the non-compliance has already occurred. To relieve a party retrospectively from the obligation to comply with the requirement might not be sufficient if the consequence of non-compliance has already come about because of the automatic operation of the rules. The present case is an example, in that the effect of O 11 r 13 is that admissions are deemed to have been made.
43. In the absence of any submission to the contrary, I propose to act on the assumption that an order dispensing with compliance by the respondent with the requirement of O 11 r 13(3), to traverse specifically every allegation in the amended statement of claim that he does not admit, will be sufficient to exclude the deeming effect of O 11 r 13(1). In other words, although the respondent is currently deemed to have admitted those allegations, the admissions will cease to be operative if an order is made dispensing him from compliance with the obligation to traverse specifically. If this assumption were not made, or turned out to be false, it would be necessary to consider whether the power in O 1 r 8, to dispense from compliance with a requirement of the Federal Court Rules, carries with it the power to relieve from the effects of past non-compliance. I incline to the view that, although this latter power is not expressed in the rules, it is a necessary incident of the power to dispense from compliance. If the rule does not extend that far, then the court must have power under s 23 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) to make such an order. That section gives the court power to make such orders, including interlocutory orders, as the court thinks appropriate. It is broad enough to encompass a power to relieve from the consequences of non-compliance with a provision of the Federal Court Rules.
…
45. …The effect of such an order is that the onus falls on the applicant to prove the falsity of the representations in all the respects pleaded, as it has attempted to do, if it wishes the court to consider the consent orders on the basis that all of the allegations of falsity have been proved. If it were also necessary to make an express order relieving the respondent from the consequences attached by O 11 r 13(1) to non-compliance with the requirements of O 11 r 13(3) in relation to the allegations in those paras, and if there is power to do so, I should also make such an order. As I have said, I act on the assumption that such an order is unnecessary.
188 I also note r 22.07 of the Rules, which provides:
Judgment on admissions
If a party makes an admission, another party may apply to the Court for any judgment or order to which the party is entitled on the admission.
189 The applicant has made no application for an order entitling him to rely on the deemed admissions of the respondents. With that said, the first and third to fifth respondents have similarly made no application for an order to withdraw their deemed admissions.
190 A judgment on admissions is given only where a clear and unanswerable case is made out and not given on admissions where a serious question of fact or law requires consideration: Worldwide Timber Traders Pty Ltd v Brouwer (No 2) [2009] FCA 447 at [13]-[14]. The appropriate test to apply in determining whether to accept admissions is whether the Court has “reason to doubt their correctness” or “reason to question the correctness of the facts admitted or agreed”. The comments of Gray J in Australian Competition and Consumer Commission (ACCC) v Leahy Petroleum Pty Ltd (2007) 160 FCR 321; [2007] FCA 794 are relevant in this regard:
46. At [157] [in Damberg v Damberg [2001] NSWCA 87], Heydon JA pointed out that ‘the court is not bound to act on admissions made by the parties or on states of fact agreed between the parties.’ His Honour then cited the Gramophone Co case, quoting an extensive passage from the speech of Lord Loreburn LC, including the passage I have quoted at [43]. At [158] and [159], his Honour referred to two other English cases, Adams v Naylor [1946] AC 543 and Royster v Cavey [1947] KB 204, in both of which it had been held that crucial admissions on which the cases had been conducted at first instance should not be accepted, because they were contrary to fact. By way of conclusion, at [160], Heydon JA said:
In short, the courts are averse to pronouncing judgments on hypotheses which are not correct. To do so is tantamount to giving advisory opinions and to encouraging collusive litigation. On the other hand, the courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness. But they are reluctant to do so where there is reason to question the correctness of the facts admitted or agreed.
47. In Symes v The Proprietors Strata Plan No [2003] NSWCA 7 at [45], Heydon JA (with whom Sheller JA and McClellan J agreed) referred to Damberg, saying:
It is true that there are cases where the courts are averse to pronouncing judgments on incorrect factual hypotheses, because to do so amounts to the giving of advisory opinions and to encouraging collusive litigation: see the cases discussed in Damberg v Damberg (2001) 52 NSWLR 492 at [148]–[160]. However, these perils do not exist here. It has not been demonstrated that the hypothesis that No 3 wall was common property is plainly incorrect. There is some evidence that it was incorrect; on this appeal evidence strongly pointing in the contrary direction has been filed. Courts commonly act on admissions in relation to matters of fact which might be disputed if the parties desired to do so, but which they have chosen to arrive at a compromise about.
191 In summary, I find that:
To the extent that the first, third, fourth and fifth respondents were deemed to make admissions against Mr Rafferty (paras 6(d), 14(e), 14(f), 28, 29, 31, 32 and 58 to 61), those admissions were inadmissible against Mr Rafferty pursuant to s 83 of the Evidence Act in the absence of his consent (and there is no evidence that Mr Rafferty consented to the admission of that evidence).
To the extent that the first, third, fourth and fifth respondents were deemed to make admissions in respect of the case against them in the terms submitted by the applicant (paras 16(a), 19(a), 23(a), 26(a), 29(a) and 32(a)), I respectfully adopt the observation of Mortimer and Bromwich JJ in Chamoun that the admissibility of an admission must be distinguished from its sufficiency to establish or support an affirmative conclusion in favour of the party who tenders it, and it does not follow that, because such evidence is admissible, it is enough to prove the issue.
In particular, to the extent that the first, third, fourth and fifth respondents were deemed to make admissions in respect of the case against them in terms of whether Mr Ford solicited relevant conduct (paras 16(a), 19(a), 23(a), 26(a), 29(a) and 32(a)) and his state of mind at a particular point (paras 30 and 33), any admission to that effect should be given little weight.
192 Indeed, in circumstances where the hearing was conducted on the basis that the respondents consistently, at all times, denied the allegations of Mr Ford, any deemed admission on their part in the pleadings as submitted by the applicant must be, at best, hollow. In respect of the question whether judgment on admissions should be given in this case, there is strong reason for me to question the correctness of facts deemed admitted.
193 It follows that I give no weight to any deemed admission on the part of the first and third to fifth respondents, as alleged by the applicant.
MEDICAL EVIDENCE
194 Evidence of three health practitioners was relied on for the purposes of the hearing. The applicant relied on the evidence of psychologist Mr Christopher Barlow, and the evidence of psychiatrist Dr Andrew Byth. The respondents relied on the evidence of psychiatrist Dr Wasim Shaikh.
195 As I explain below, although the evidence of Mr Barlow was admitted, I accord it little or no weight. The situation in respect of the expert opinions of Dr Byth and Dr Shaikh, to the extent that their opinions conflict, is more complicated, for reasons to which I will shortly turn.
Mr Christopher Barlow
196 In their notice of objections to the applicant’s evidence, filed on 1 March 2019, the respondents objected to the entirety of both affidavits sworn by Mr Christopher Barlow on 11 August 2018 and 12 December 2018. The objections were on the bases of relevance, opinion, failing to express an opinion based on any specialised knowledge or training, that the evidence was evasive and ambiguous, and that the evidence was frivolous and vexatious. The respondents also submitted, in summary, that Mr Barlow’s evidence did not comply with the Expert Evidence Practice Note (GPN-EXPT).
197 At all material times, Mr Barlow was registered as a psychologist with the Australian Health Practitioner Regulation Agency and has been practicing as a psychologist since 1998. I understand that Mr Barlow worked in private practice, specialising in clinical and organisational psychology, training and development, human resource management and executive coaching.
198 On 12 October 2016 Dr Olaolu Omotode of Main Street Medical and Dental Centre at Beenleigh referred Mr Ford to Mr Barlow for “major depression with suicidal ideation”. Mr Barlow has seen Mr Ford on an ongoing basis since October 2016.
199 At the hearing, Mr Reidy for the applicant informed me of an agreed position reached by the parties in respect of Mr Barlow’s evidence, namely that the applicant would rely on Mr Barlow’s affidavits for the following purposes only:
for the fact that Mr Barlow made the diagnoses to which he referred in his reports;
for Mr Barlow having treated Mr Ford in accordance with those diagnoses;
for the observations, treatment, recommendations and factual matters set out in each of those reports;
not as an expert opinion report; and
noting that Dr Byth referred to Mr Barlow’s diagnoses and agreed with them.
(Transcript p 286 ll 18-28.)
200 Mr Barlow was not cross-examined at the hearing, however his affidavits were tendered on the basis that the applicant would refer to the aspects of Mr Barlow’s evidence that were relied upon, and bring the Court’s attention to that evidence of Mr Barlow which was important to the applicant’s case.
201 Insofar as I can ascertain, there is no specific reference by the applicant in closing submissions, either oral or written, to the reports of Mr Barlow. I assume, however, that the applicant relies on Mr Barlow’s diagnoses of Mr Ford, observations, treatment, recommendations and factual matters set out in each of Mr Barlow’s four reports prepared on 29 January 2018, 13 May 2018, 8 August 2018 and 10 December 2018.
202 Before considering the weight which should be given to Mr Barlow’s evidence, it is useful to summarise it, noting however that it is opinion, not expert evidence, and that his evidence was not tested in cross-examination.
First report of Mr Barlow dated 29 January 2018
203 In his first report, Mr Barlow discussed Mr Ford’s referral, diagnosis and provided a brief history. Mr Ford’s treatment was discussed, as well as his capacity to return to work, Mr Barlow’s assessment of Mr Ford and Mr Barlow’s recommendations.
204 Mr Ford was first placed on an ATAPS (Access to Allied Health Professionals) Suicide Prevention Plan on 14 October 2016.
205 Mr Barlow assessed Mr Ford using three validated psychological instruments, which Mr Barlow stated confirmed the diagnoses of major depression, anxiety and post-traumatic stress disorder (PTSD).
206 Mr Ford was placed on his second ATAPS Suicide Prevention Plan on 18 January 2017.
207 Mr Barlow stated that Mr Ford had reported he was continuing to experience:
nightmares;
thrashing in his sleep;
hyper-vigilance in all situations;
anger (voiced anger towards the alleged perpetrators, but never acting on this anger); and
financial difficulties (unsuccessfully attempting to access Centrelink and his Superannuation).
208 Mr Barlow stated that Mr Ford made a suicide attempt on 16 August 2017, by attempting to crash his car. Thereafter, Mr Ford was placed on his third ATAPS Suicide Prevention Plan.
209 Mr Barlow stated that prior to the suicide attempt, Mr Ford had “gained new employment but lost the job because he was uncomfortable with dealing with strangers. [Mr Ford] was constantly looking for behaviours that where [sic] similar to those he experienced at his previous employer.”
210 On 24 November 2017 Mr Ford was trialled on Serequel, an anti-psychotic medication, which reportedly resulted in an improvement in Mr Ford’s sleep and mood. Mr Barlow further commented that:
Shortly afterwards he commenced another new job but reported observing behaviours he described as “dry humping.” This triggered his anxiety and he left the job.
On the 08-02-2017, Mr Ford again commenced a new job but “freaked out” and left the job. He reported his feelings of being isolated and being “picked on” to the job agency.
211 Mr Barlow stated that, on 8 November 2017, Mr Ford “received news of the Queensland Regulator’s decision [to] over-rule his previous employer’s dismissal of his claim.” Mr Barlow stated that Mr Ford’s reaction to this news was:
to commence waiting at the gate of his previous employer, where he followed one of the alleged perpetrators home.
212 Mr Barlow reported that this conduct demonstrated Mr Ford’s “hyper-vigilance and disturbed thinking.” Mr Barlow reported that Mr Ford was “counselled in extremely clear terms that this behaviour was unacceptable, unlawful, and not productive.”
213 Mr Barlow stated:
Mr Ford’s mood is highly volatile. He demonstrates a pattern of starting to improve but then is triggered by perceived setbacks, which results in setbacks in his performance.
214 In respect of diagnosis, Mr Barlow stated that Mr Ford’s behaviour “fits all of the DSM Diagnostic criteria for Depression, Anxiety, and Post Traumatic Stress Disorder.” Mr Barlow stated that, following the updated diagnoses, Mr Ford was placed on additional anti-psychotic medication, namely Serequel, and that this medication resulted in an improvement in Mr Ford’s behaviour, coping ability and mental state.
215 Mr Barlow stated that Mr Ford had been treated by a combination of anti-depressants (Cymbalta and later Zoloft) and anti-anxiety medications (initially Valium and later Serequel). He had also been treated by cognitive behaviour therapy (focused on Mr Ford’s anger) and imaginal exposure therapy (which involved imagining and reliving traumatic events).
216 Mr Barlow stated that, in his opinion, Mr Ford was not currently fit to return to full time work, and that he was expending considerable energy on resolving the legal proceedings.
217 Mr Barlow’s assessment of Mr Ford was as follows:
• His case is very complex with multiple stakeholders involved, investigation conducted, and several changes of treating GPs
• The length of time taken to reach resolution has maintained, and at times exacerbated, his symptoms
• His mood has fluctuated considerably and life for him resembles a rollercoaster.
• His has improved when action was being taken (hopeful) and has deteriorated when his claims are rejected (lost hope)
• He has made multiple efforts to improve his situation, and has been compliant with his treatment
• His relationship with his partner has been impacted. It has been very stressful but she remains his main support
• His financial situation is dire. He has not worked since September 2016
• Given the amount of time off work and Mr Ford’s poor record of sustaining a job, a Graduated Return to Work would [be] necessary
• Should the decision be made to place Mr Ford on WorkCover a RTW would be an integral part of the process. Such a decision would allow psychiatric review of his condition
Second report of Mr Barlow dated 13 May 2018
218 Mr Barlow’s second report reiterated Mr Ford’s diagnosis of major depression and anxiety, in addition to a diagnosis of PTSD.
219 Mr Barlow stated that Mr Ford had been involved with a specialised therapeutic process known as the Pennebaker Model. Although Mr Barlow did not specifically explain either the nature of the therapy or Mr Ford’s “involvement”, I understand from Mr Barlow’s report that this process involved recounting events in a supportive/controlled environment to reduce trauma, and that Mr Ford was administered this therapy.
220 Mr Barlow opined that Mr Ford had “a history of reacting negatively to stress that is either real or perceived.”
221 Mr Barlow made numerous comments concerning Mr Ford’s involvement in legal proceedings, including comments that time spent on conducting dual proceedings would increase the potential for negative psychological effects on Mr Ford. Mr Barlow further commented that it was reasonable to predict that Mr Ford’s suicidal ideation may increase.
Third Report of Mr Barlow dated 8 August 2018
222 In his third report, Mr Barlow repeated the background to Mr Ford becoming his patient, and noted that, in each session, Mr Ford reported that he continued to experience the following symptoms:
• low energy;
• low motivation;
• high anxiety;
• nightmares;
• thrashing in his sleep;
• hyper-vigilance in all situations;
• anger (voiced anger toward the alleged perpetrators, but never acting on this anger); and
• financial difficulties (unsuccessfully attempting to access Centrelink and his Superannuation).
223 Mr Barlow reported that treatment of Mr Ford had focused on seven main areas:
1. Improving and stabilising his mental state
2. Reduce anger
3. Reduce sensitivity to perceived hostile behaviours
4. Developing coping strategies
5. Reviewing medication to reduce symptoms
6. Taking responsibility for his actions and controlling his behaviour
7. Focusing on his future
224 Mr Barlow observed that medication appeared to have effected a positive change to Mr Ford’s mental state, including reduction in his mood swings and his stress levels.
225 Mr Barlow noted that the cognitive behaviour therapy had considerably reduced Mr Ford’s anger. Mr Barlow noted, however, that Mr Ford’s anger fluctuated, particularly when he felt stressed. Mr Barlow illustrated this comment by reference to a presentation by Mr Ford on 12 July 2018, after reviewing statements for Court, when Mr Ford reported that he had:
• stopped sleeping;
• stopped eating;
• stopped gym;
• very poor memory e.g. couldn’t remember if he had taken his medication;
• constant twitching of legs, squinting eyes, clenching hands (which was observed); and
• thoughts of “making the alleged perpetrators suffer as he had suffered”.
226 Mr Barlow commented that this behaviour was “of concern, and demonstrates Mr Ford’s fragility”, and that Mr Barlow had sought a referral to a trauma trained psychiatrist.
227 Mr Barlow also commented:
A key determinant to his future treatment needs will be the resolution of his legal case.
• If the result is seen as negative it is extremely likely that Mr Ford will be in crisis which would require intensive intervention.
• If the result is seen as positive the prognosis is much better.
228 In the third report, Mr Barlow provided further details concerning what he understood was Mr Ford’s suicide attempt on 16 August 2017:
He report driving his car towards a pylon but veered at the last moment. This action caused a tire to burst stopping the car, thus ensuring he was not able to complete his intention.
Following this he was placed on his third ATAPS Suicide Prevention Plan.
Mr Ford now keeps the tire in the garage as a preventative reminder if he recommences suicidal thoughts.
Therapy and medication has reduced his suicidal ideation. However, when he becomes stressed he reports that the thoughts return.
229 In respect of prognosis, Mr Barlow reiterated his assessment of Mr Ford as stated in Mr Barlow’s first report.
230 Mr Barlow stated that Mr Ford had always expressed the wish to return to work, however given his current ongoing issues it was considered unfeasible. Mr Ford had a history of self-seeking work placements which failed quickly. Mr Barlow suggested this had reinforced Mr Ford’s anxiety and self-doubt.
231 Mr Barlow also stated that Mr Ford’s anxiety had been considerably reduced when he used a combination of medication, cognitive behavioural therapy techniques and exercise. Further, Mr Ford’s partner was his primary support and they had been working together to improve his functioning with fluctuating success.
232 Mr Barlow set out a three stage approach to the frequency of future sessions for Mr Ford, with sessions suggested to occur more frequently whilst these proceedings remained on foot.
233 Mr Barlow recommended that, until Mr Ford had a regular psychiatrist, there was a need for a two-stage approach in respect of medication:
1. Stabilise the client’s medication and behaviour to (a) reduce the impact of the conditions being experienced and (b) allow clearer mental functioning.
2. Incorporate exercise and other strategies as necessary to parallel and build on the impact of, the medication[.]
234 Mr Barlow also recommended Mr Ford continue regular consultations with his doctor and continue the therapies he was being administered.
Fourth report of Mr Barlow dated 10 December 2018
235 In light of the report by Dr Wasim Shaikh of 10 April 2018, in which Dr Shaikh referred to the presence of a psychotic disorder, likely drug-induced, Mr Barlow was requested to provide a supplementary report addressing a number of questions. In summary, Mr Barlow found as follows:
Mr Barlow reiterated his opinion that Mr Ford suffered from Complex Trauma (PTSD and Major Depression) as provided in his report dated 8 August 2018. Mr Barlow stated that he had seen no evidence of a drug-related psychosis, and that Mr Ford had not exhibited signs of delusional thinking. Mr Barlow stated that Mr Ford was clear about time, place and person.
Mr Barlow stated that the assumptions and material facts for his conclusion were that Mr Ford was assessed using three validated psychological instruments, namely K10, DASS, and PTSD Checklist Civilian (PCL-S).
Mr Barlow stated that Mr Ford had been assessed by three psychiatrists, namely Dr Wasim Shaikh, Dr Andrew Byth and Dr Thomas Moore. Dr Shaikh was the only psychiatrist with the opinion that Mr Ford had a drug-related psychosis.
236 Mr Barlow noted that Mr Ford had been very open about his marijuana usage, with a history of marijuana used when binge drinking. Mr Barlow further noted that Mr Ford’s marijuana and alcohol usage had significantly decreased as his financial situation was very restrictive. Mr Barlow also noted that Mr Ford had been compliant with his therapy conditions and in taking his prescribed medication.
237 Mr Barlow also noted:
Mr Ford has reported some paranoid thinking. However, given his history of not being believed about his allegations; the initial dismissal of his claims; and then the subsequent acceptance of his claims by the Regulators Reasons for Decision (7-07-2017), it could be considered understandable that he may be suspicious of other’s motives.
238 Mr Barlow ultimately reiterated his assessment and recommendations found in his first report of 29 January 2018. Overall, Mr Barlow commented that Mr Ford was making gradual improvements in his mental state and his presenting behaviours.
Consideration
239 It is well-settled that a psychologist can provide an expert opinion: Thirukkumar v Minister for Immigration & Multicultural Affairs [2002] FCAFC 268, Subramaniam v Minister for Immigration & Multicultural Affairs [2002] FCAFC 255, R v Ping [2006] 2 Qd R 69; [2005] QCA 472, Veen v R (1979) 143 CLR 458; [1979] HCA 7. However, Mr Barlow’s opinion was tendered on a limited basis, as I have already described. I note that, notwithstanding his comments in his fourth report referring to the Expert Evidence Practice Note, his first to third reports did not purport to comply with that Practice Note.
240 It appears that Mr Ford had been Mr Barlow’s patient for several years. Mr Barlow was accordingly familiar with Mr Ford’s presentation of symptoms, and the treatments Mr Ford had received, at least as recommended by Mr Barlow. I also note that Mr Barlow’s reports repeatedly referred to the stages of litigation in which Mr Ford was engaged, and that he expressed opinions on ways forward in respect of that litigation which Mr Barlow considered would be helpful for Mr Ford’s mental health, but which could in no way be considered “medical” opinions. Mr Barlow’s repeated comments in his report concerning the potentially deleterious effects of a negative outcome to Mr Ford in respect of Mr Ford’s litigation are also irrelevant in the present proceedings.
241 I also note that, in the course of the hearing of these proceedings, Mr Ford felt the need to talk with Mr Barlow as his treating psychologist outside Court during Mr Ford’s cross-examination, and apparently did so (see for example transcript p 304). I agree with the submissions of Ms Reece that Mr Barlow is a person “who is very much in Mr Ford’s camp” (transcript p 279 l 16).
242 Other than in relation to the administration of therapies Mr Ford has apparently experienced in the presence of and at the suggestion of Mr Barlow, I do not accept Mr Barlow’s evidence as establishing any of the factual matters he has set out in his reports. Mr Barlow’s observations concerning the medications Mr Ford was taking at any time can only be hearsay, although potentially first-hand hearsay.
243 Mr Barlow’s comments referable to the alleged perpetration of conduct by the respondents directed towards Mr Ford, or other co-workers of Mr Ford at Inghams, are no more than hearsay, and repetition of Mr Ford’s allegations. The evidence of Mr Barlow which can only be described as hearsay includes whether or not Mr Ford attempted to suicide, as Mr Barlow has assumed the truth of such statements by Mr Ford in his reports. I give this evidence no weight.
244 To the extent that Mr Barlow expressed an opinion concerning whether Mr Ford had PTSD or, for example, a drug-related psychosis, psychologists do not have the expertise to make a medical diagnosis (see R v Verrall [2015] QCA 72 at [34]). I also note the parties have accepted that Mr Barlow’s evidence is not an expert opinion, and I give Mr Barlow’s views in this respect of this diagnosis of Mr Ford no weight.
245 I understand from his reports that Mr Barlow expressed his opinion of Mr Ford’s medical condition in circumstances where Mr Ford was unable to afford psychiatric consultations. However, the exigencies of Mr Ford’s financial position do not give greater credibility to any opinions of Mr Barlow concerning Mr Ford’s medical condition. As Ms Reece for the respondents properly submitted, there is evidence from two psychiatrists concerning Mr Ford’s medical condition. I prefer to have regard to their evidence.
246 Finally, in respect of Mr Barlow’s evidence I note that he did not present for cross-examination. I understand the basis on which this occurred, including that he continued to be available to provide support for Mr Ford. However the fact remains that Mr Barlow’s evidence remained untested, and historically, untested evidence is given little weight (cf discussions in Re O’Neil [1972] VR 327 at 333 and Chan v Mazurkiewicz [2015] WASC 432 at [18]).
247 Overall I consider that, to the extent that I have regard to Mr Barlow’s evidence at all, I should give that evidence no weight.
Expert Evidence
248 The applicant made no objections to the evidence of Dr Shaikh in his updated notice of objections, or at the hearing. The respondents, however, objected to the admissibility of Dr Byth’s affidavits sworn 13 August 2018 and 5 December 2018.
Dr Andrew Byth
249 Dr Andrew Byth is a psychiatrist working in private practice, specialising in general adult psychiatry. He has practised as a psychiatrist since 1986.
250 Dr Byth’s evidence consisted of:
an affidavit sworn 13 August 2018;
an affidavit sworn 5 December 2018;
an affidavit sworn 15 May 2019;
an affidavit sworn 26 June 2019; and
a combined expert report of Dr Byth and Dr Shaikh filed 22 July 2019.
251 Annexed to Dr Byth’s first affidavit was a medico-legal report he compiled for the applicant, having examined Mr Ford in his rooms on 7 June 2018 for that purpose. His report stated that he had regard to the following documents in creating the report:
• Statement of Claim
• Chris Barlow 29/1/18
• Patient Medical History
• Client’s Affidavit
• Dr Shaikh 10/4/18
252 Dr Byth noted Mr Ford’s past psychiatric history relevantly as follows:
5.1 Around 2002, he recalled having trouble sleeping when he was working night shifts in Adelaide, and he was prescribed the antidepressant Cipramil in low doses for about 2 years.
5.2 In 2016, following the sexual harassment at work, he saw his GP, and he was restarted on the antidepressant Cipramil…
…
10.8 He had a history of an earlier depressive episode in 2002-2004, which he related to insomnia from shiftwork, and his symptoms seem to have cleared after about 2 years of antidepressant medication. He was apparently then free of depressive symptoms until 2015-2016.
(Emphasis in original.)
253 Dr Byth diagnosed Mr Ford with the following conditions:
PTSD;
major depression;
symptoms resembling a specific phobia; and
substance abuse disorder.
254 Dr Byth noted that the statements of Mr Ogg, Mr Ly and Mr Bhardwaj from 2016 and 2017 “seemed to corroborate the complaints of sexual harassment made by Richard Ford”, and later stated that he believed the sexual harassment and bullying Mr Ford faced at work in 2015 and 2016 was the “major contributing factor to his PTSD and Major Depression”.
255 A supplementary medico-legal report of Dr Byth dated 5 December 2018 was annexed to his second affidavit. In that supplementary report, Dr Byth discussed Mr Ford’s capacity for future work and assessed Mr Ford’s residual disability and the stability of his mental illness. Dr Byth opined that Mr Ford’s then level of psychiatric impairment and disability was very high, being a Class 4 (severe impairment), 47% whole person impairment. Dr Byth also opined that Mr Ford’s severe PTSD and major depression were inherently unstable. Dr Byth stated that he believed Mr Ford was “not likely to make any significant improvement with specialist treatment over the next 3 years”.
256 Dr Byth maintained his diagnoses in the combined expert report (filed on 22 July 2019) of work-related PTSD and work-related major depression, with associated symptoms resembling a specific phobia of the workplace, and the additional diagnosis of substance abuse disorder, predominantly consisting of alcohol use disorder (mostly involving occasional binge drinking, with some lesser abuse of marijuana at times).
257 A further supplementary medico-legal report of Dr Byth dated 10 May 2019 was annexed to his third affidavit. In that report, Dr Byth relevantly stated:
7. In my report dated 19/6/18, I commented that, as a result of sexual harassment and bullying at work in 2015-2016, Richard Ford had developed Posttraumatic Stress Disorder (PTSD) and Major Depression, as well as phobic avoidance of the workplace. This has resulted in marked psychiatric impairment, and in his needing specialist treatment over the next 3 years, followed by a further 3 years of treatment of exacerbations of PTSD by his GP.
8. On reviewing the additional documentation, I corroborated this past history of treatment of depression, however I also found evidence of other depressive episodes e.g. he was prescribed the antidepressant Cipramil at the Whites Road General Practice in 2002-2005 i.e. extending beyond 2004, and he was also prescribed Cipramil in 2006 at Bayside Mental Health, indicating either his earlier depression was persisting or recurring. This was reflected in his being described by treating Psychiatrist Dr Kneebone in 2002 as suffering from Major Depression and Dysthymic Disorder (chronic fluctuating mild to moderate depression).
9. I also noted that he was being prescribed the antidepressant Cipramil in 2013 at the GP practice at Primary Victoria Point, which may have indicated another bout of depression prior to his being sexually harassed at work in 2015.
10. Overall, I thought this additional information indicated he apparently suffered from intermittent periods of depression prior to 2015, either recurring episodes or Major Depression or Dysthmic Disorder, against a background of obsessive-compulsive or borderline personality traits; however I thought these conditions were probably in reasonable remission prior to 2015, as he had been working and managing some social relationships i.e. I thought they were not causing significant pre-existing psychiatric impairment.
11. In summary, these records indicated he had additional previous depressive episodes to those that I documented in my report on 19/6/18, however I felt they did not materially alter my opinions on the effects of sexual harassment in 2015-2016, which subsequently resulted in his developing a new condition, PTSD, as well as much more sever and more sustained Major Depression.
258 A second further supplementary medicolegal report of Dr Byth dated 25 June 2019 was annexed to his fourth affidavit. Under the heading “Findings on Examination and Diagnosis” Dr Byth relevantly stated:
2.1 Having read the additional information, I remain of the opinion that Richard Ford is suffering from work-related PTSD and Major Depression, along with symptoms resembling a Specific Phobia of the workplace.
2.2 He also has the additional diagnosis of Substance Abuse Disorder, which I found related mainly to episodes of binge drinking and occasional use of marijuana. I believe that his substance abuse has not been sufficient to cause a drug-induced psychosis, as he does not have any auditory hallucinations or paranoid delusions or tangential thoughts.
2.3 He is not suffering from any temporary or transient mental illnesses i.e. his work-related PTSD and Major Depression are chronic and entrenched, and they are causing severe and permanent psychiatric impairment.
259 During cross-examination, Dr Byth explained further why he did not agree with Dr Shaikh’s diagnosis:
The doctor – Dr Shaikh states his diagnosis, major depressive disorder of recurrent nature, along with cannabis misuse and abuse. He states:
I believe both of these conditions pre-date the allege stressors in the workplace.
Just as a final question, Doctor, why do you disagree with that? Why do you say that’s wrong?--- Well, I think his depression before the Inghams’ employment was milder and just needing intermittent treatment, and he didn’t have PTSD at all, you know, so to my mind it’s quite clear that the events at Ingham have had a dramatic effect on his depression. If it was present probably in a very mild form at the time he was working at Inghams’, it has been wildly exacerbated by what happened there, and he has got a new condition layered on top of the PTSD, and the marijuana I think is a – cannabis abuse is a minor point. I don’t think it’s relevant, and alcohol abuse he has is intermittent, so it’s probably not frequent enough to contribute, I think.
(Transcript p 760 ll 17-30.)
260 Further, under the heading “Opinion on any Condition and Causative Factors”, Dr Byth relevantly stated:
3.1 I noted that Richard Ford complained of sexual abuse by a number of workers at the chicken factory in 2015-2016, and that some of his fellow workers were also being abused by the same perpetrators. These allegations were corroborated in the statements of his fellow workers Kahu Ogg, Sanan Ly and Jatin Bhardwaj, who had either been witnesses to the sexual harassment of Richard Ford, or had themselves been victims of the same harassment and bullying by the same perpetrators.
3.2 As a result of these statements by his fellow workers, I thought there was little doubt that the sexual harassment and bullying actually took place, and I could understand that it had a profoundly traumatic psychological effect on Richard Ford, which led to chronic PTSD symptoms and Major Depression which have unfortunately become treatment-resistant.
…
3.7 I believe that he was not suffering from any pre-existing mental illness at the time he was exposed to bullying and sexual harassment at work in 2015-2016, and there was no pre-existing factors which contributed to his development of PTSD and Major Depression.
261 The applicant submitted that Dr Byth’s diagnosis of PTSD should be accepted for the following reasons:
Mr Ford has been diagnosed with PTSD by his treating psychiatrist Dr Moore, Mr Barlow and Dr Byth.
Dr Shaikh is “out on a limb” with his diagnosis (which he has changed number of times) and he needs to demonstrate excellent reasons to differ from those treating him and from Dr Byth.
Dr Byth made his diagnosis using current diagnostic tools under DSM V, whereas Dr Shaikh has used the dated DSM IV. The more reliable diagnosis should be based on contemporary medical practice rather than outdated medicine.
It is quite clear from Dr Byth’s last report, and from his grasp in the witness box of the material that he was provided concerning Mr Ford’s medical history, that Dr Byth was fully across the material and was able to assess it, analyse it, and explain why it did not alter his initial views about the existence and/or influence of a pre-existing condition.
Dr Byth provided a rationale for his diagnosis.
262 In summary, the respondents submitted the following in relation to the admission of Dr Byth’s expert opinion:
The Court only needs to consider the expert opinions should it make any findings of fact that lead to any respondents’ liability. Otherwise, this evidence is not relevant.
Dr Byth's evidence failed to expressly set out his reasoning.
Material annexed to Dr Byth’s evidence in the form of statements which the Court can read for itself were not admissible as expert evidence.
Dr Byth did not distinguish between facts he assumed, and his opinion.
Dr Byth has expressly relied on contentious and unproven matters of evidence on the basis and belief that those matters were true. Expert opinion is not relevant if there is an insufficient connection between “all the facts assumed by the expert as the basis for his or her opinion, and those proved or admitted”: Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424; [2003] FCA 893 at [25].
Dr Byth approached this matter on the basis that Mr Ford’s complaint was genuine.
Dr Byth only saw the applicant once, and was clearly not impartial.
He was inclined to give higher scores than those set out in the guidelines for that assessment tool that he was using.
He did not make appropriate concessions under cross-examination. For example, he would not concede that the applicant’s lack of candour in the disclosure of his medical history had any impact on how readily Mr Ford could be believed.
Dr Byth’s maintained his assessment of Mr Ford which, ordinarily, one might expect Dr Byth to concede was difficult to maintain.
It is not the case that Dr Byth’s evidence received support from the evidence of Mr Barlow or the evidence of the other psychiatrist, Dr Moore. Dr Moore gave evidence of a different kind of disorder to PTSD. Mr Barlow is a psychologist, and, in any case, his evidence was not submitted as an expert witness in this case.
263 The respondents’ objections to the first two affidavits (and first two reports) of Dr Byth were, cumulatively, on the bases of:
relevance;
inadmissible opinion;
the annexures to the affidavit contained opinion not based on any specialised knowledge or training;
the affidavit did not:
• set out separately each of the factual findings or assumptions on which the expert’s opinion was based;
• set out separately from the factual findings or assumptions each of the expert’s opinions;
• set out the reasons for each of the expert’s opinions; and
• comply with the Expert Evidence Practice Note;
the evidence was evasive and ambiguous; and
the evidence was frivolous and vexatious.
264 Overall, I consider that Dr Byth’s evidence and reports are admissible. In particular, I find that:
The assertion that Dr Byth’s evidence was evasive and ambiguous, and frivolous and vexatious, is simply not supported, and is not made out.
Dr Byth’s psychiatric opinions as to the medical condition suffered by Mr Ford, and matters associated with the medical opinion, are relevant to the issues in the proceedings.
While I have concerns (to which I will shortly turn) that some aspects of Dr Byth’s opinion are not based on facts as subsequently established by the evidence, I am not persuaded that this is a reason for ruling his opinion inadmissible. Dr Byth’s diagnosis of Mr Ford suffering from PTSD was referable to the application of diagnostic tools which rely on self-reporting. Whether ultimately I consider that Dr Byth’s opinion is based on error, or facts not ultimately proven, is not determinative of the admissibility of his evidence. It may, however, be relevant to whether I accept it and the weight I attribute to it.
To the extent that Dr Byth’s evidence annexed “opinion not based on any specialised knowledge or training” –which I understand to be a reference to Mr Barlow’s evidence – I do not consider this renders Dr Byth’s evidence inadmissible. Dr Byth was frank in admitting that he had had regard to Mr Barlow’s reports, and it was reasonable to annex that material. In my view this issue goes to weight rather than admissibility.
While the respondents asserted non-compliance with the Expert Evidence Practice Note, I am not satisfied that this is the case. In particular:
• It is clear that Dr Byth is a witness with specialised knowledge based on training, study or experience.
• In his reports Dr Byth clearly set out information on which he based his diagnosis, and then stated his diagnosis.
• Although Dr Byth relied on Mr Ford’s statements concerning his condition, this is not surprising in a psychiatric diagnosis, particularly as Dr Byth specifically applied diagnostic tools under DSM V which are dependent on the patient’s self-reporting.
265 In my view Dr Byth’s evidence, including his reports, is admissible.
Dr Wasim Shaikh
266 Dr Shaikh is a practicing psychiatrist. He was a very competent witness. He was credible and very responsive under lengthy cross-examination, and able to explain the basis for his diagnosis.
267 Dr Shaikh’s evidence consisted of:
an affidavit affirmed 1 February 2019;
an affidavit affirmed 22 February 2019;
an affidavit affirmed 21 June 2019; and
a combined expert report of Dr Byth and Dr Shaikh filed 22 July 2019.
268 Dr Shaikh saw and assessed Mr Ford on 21 March 2018, 19 December 2018 and 17 January 2019.
269 Dr Shaikh gave oral evidence that the structure of his assessment involved investigating the patient’s current demographics, background history, history of mental illness, any history of substance use and alcohol use, family history of psychiatry problems, major medical conditions, history of presenting complaints as described by Mr Ford, and details of symptoms experienced as a result (transcript p 928).
270 Dr Shaikh agreed during cross-examination that the instructions he received as early as his first report suggested that there was no substance to the complaints being made by Mr Ford (transcript pp 931-932).
271 Dr Shaikh prepared four medico-legal reports relating to Mr Ford and one combined report with Dr Byth. Dr Shaikh’s first report dated 10 April 2018 was to Inghams, for the purposes of Mr Ford’s WorkCover claim. Similarly, Dr Shaikh’s second report dated 10 January 2019 was also for the purposes of Mr Ford’s WorkCover claim.
272 The history and background information on which Dr Shaikh appears to have based his first report dated 10 April 2018 was limited. Dr Shaikh was aware only of a depressive episode of Mr Ford “approximately 15 years back”, and made reference to Mr Ford being “bullied and beaten up” as a child.
273 In his first report, Dr Shaikh concluded:
It appears that in response to perceived work stressors, Mr Ford developed anxiety phenomena, along with some depression symptoms, interfering with his social and occupational capabilities.
It would be interesting to peruse GP records of past attendances, where available, to ascertain more psychiatric history, and history of vulnerabilities, along with history of recreational drug use.
There were inconsistencies noted during assessment, and his presentation was, in general, unusual. I suspected misuse of recreational drugs, and with his confession of misuse of recreational drugs twelve months prior, this notion is further strengthened. Added to this, he was not compliant with the request for drug screen within 48 hours of the assessment. In fact, he completed the screen two weeks after the assessment, which is enough time for most recreational drugs to exit the renal system. On the balance of probabilities, and with his presentation on the day, past history of use, and delay in completing the screen, I believe Mr Ford is misusing recreational drugs.
It is difficult to explain Mr Ford’s recently deteriorated mental health, particularly with knowledge that in 2017, he was capable of working in alternative employment, in a full-time basis, albeit with some noted distress. I speculate if there was a contribution from recreational drug misuse.
There appears to be the ongoing presence of psychiatric phenomena. On the balance of probabilities, his previously experienced and accepted condition has stabilised, and ongoing symptoms seem reflective of a psychosis like disorder, perhaps drug induced.
(Underlining in original.)
274 During cross-examination, Dr Shaikh agreed that he was suspicious of Mr Ford’s drug use for three reasons:
So I – I had summarised it into three reasons. One was not just disappearance [sic] but the mental state examination in general. So the inconsistencies that I had noted on the mental state examination. The second was his refusal – not his refusal, but his delay in providing the drug screen, and the third was the questioning and the response to the questioning in relation to recreational drug usage.
(Transcript p 937 ll 18-22.)
275 In relation to whether Mr Ford’s perception that Dr Shaikh viewed him as a drug user may have affected Mr Ford’s frankness with Dr Shaikh, Dr Shaikh commented that he felt he had managed to stablish a good rapport with Mr Ford during his three assessments. He further commented that if there was a question of Mr Ford being apprehensive during the assessment, the apprehension would more likely be about the referral coming from Inghams, and the concern that there may be a bias towards the referral made, rather than Mr Ford being seen as a drug user (transcript p 938).
276 In relation to Dr Shaikh’s second report dated 10 January 2019, Dr Shaikh was provided with further relevant history of Mr Ford in relation to his childhood. However, Dr Shaikh still had only limited knowledge of Mr Ford’s past medical history, referring only to “depressive phenomena approximately 15 years ago” in the report.
277 In that report, Dr Shaikh made the following comments in relation to Mr Ford’s history:
I understand that there is some past history of mental illness, but Mr Ford does not present with significant pre-existing mental illness. I have made reference to misuse of recreational drugs and I note that there have been problems with alcohol use, including charges of DUI. I believe these are secondary contributors to his experienced condition.
278 Dr Shaikh discussed the progress of Mr Ford since Dr Shaikh’s first report:
As a recap of reported symptomatology in the previous assessment, Mr Ford described ruminative thoughts, social isolation, sleep disturbances, anxiety (including panic), impaired concentration, and reduced self-care. He advised that his agitation had affected his relationships. He noted self-harm ideation, as well as homicidal thoughts.
Mr Ford advises that not much has changed in relation to his mental health in the past nine months. He reported the following:
• He continues to experience ruminative thoughts in relation to past events. He advises that his employers have committed perjury and have continued to lie during federal court proceedings.
• He described social isolation, generally preferring to stay at home, but would go out to the shops or to the gym on most days.
• His sleep has improved although he continues to have some nights with disturbing dreams.
• He has had some interest in gardening on the recommendation of his psychologist and would spend some time in the yard.
• He continues to report physical agitation, including shakes, but has some good days where they are not as troublesome.
• His self-care remains poor and he notes that he “does not care”. His wife continues to work from home on two days per week.
• During panic attacks, he experiences hot and tingly sensations, and often throws up.
• He describes a strain in his relationship with his wife but notes that there have been no periods of separation. He maintains contact with his family and with friends (although in reduced frequency).
279 Dr Shaikh made the following comments in the report in relation to the cause of Mr Ford’s condition:
I remain of the opinion that Mr Ford’s initial condition was caused by perceived stressors in his workplace between mid-2015 and mid-2016. I believe his condition reached a stage of stability by mid-2017, and deterioration thereafter was related to his involvement in court proceedings and recreational drug misuse. His current condition is maintained by his ongoing involvement in court proceedings and I expect improvement following the scheduled proceedings in April 2019.
280 For the preparation of Dr Shaikh’s third report dated 29 January 2019 (and first report for the purposes of these proceedings), Dr Shaikh was provided with substantially more information in relation to Mr Ford’s prior medical history. Dr Shaikh was also provided with greater information on Mr Ford’s childhood, including Mr Ford’s physical abuse as child, being “bullied and beaten up”, and an assault of him at the age of 18 when Mr Ford felt he would be killed. Dr Shaikh noted that he had regard to the following documents in preparing that report:
Mr Ford’s affidavit sworn 4 June 2018;
Mr Ford’s application for employment;
a report by Dr Shaikh dated 10 April 2018;
a report of Dr Byth dated 5 December 2018;
a report of Dr Byth dated 19 June 2018;
a report of Mr Barlow dated 29 January 2018;
a report of Mr Barlow dated 13 May 2018;
a report of Mr Barlow dated 10 December 2018;
a report of Dr Omatade (GP) dated 12 October 2016;
a report of Dr Omatade dated 28 December 2016;
GP records for June 2016 and various dates in 2017;
a report of Dr Muhammed (GP) dated 13 June 2017;
a report of Dr Moore (psychiatrist) dated 11 September 2018; and
a report of Dr Moore dated 27 August 2018.
281 In that report, Dr Shaikh noted that Mr Ford described the following psychological symptoms:
• Ruminative thoughts in relation to past events. He believes his employers have committed perjury and have continued to lie during Federal Court proceedings.
• Social isolation, preferring to stay at home in bed. He is however able to attend the gym regularly, at times spending over two hours. He has had some involvement in Jiu Jitsu but noted during recent assessment that due to the stressors of Federal Court proceedings his attendance at the gym has reduced.
• He describes sleep disturbances and have previously experiences nightmares and restlessness. These had improved over a period of time, including in his previous assessment of December 2018. Mr Ford, during his recent assessment of January 2019, noted that with increased anxiety surrounding the court proceedings his sleep had been further disturbed.
• He experienced a lack of interest in activities which he would previously enjoy. He stays away from car shows and from shopping malls. He has however had the “odd weekend away” with his wife. He has travelled to New Zealand on two occasions in the past two years, including for a wedding. He has had some interest in gardening on recommendation from his psychologist, but the involvement in this has reduced in recent weeks, for reasons noted above.
• He describes anxiety, including panic like symptoms which have gotten worse with court proceedings. He has periods of throwing up. He reports physical agitation including shakes but has “some good days”. He experiences hot and tingly sensations.
• He describes that there has been relationship strain with his wife but no periods of separation. He maintains contact with friends and family although this has recently been in reduced intensity.
• His concentration has previously been disturbed but is starting to improve. He has noted a level of distractibility. His concentration has reportedly been impaired while driving but he has been capable of driving long distances. He requires the use of a medicine box.
• His motivation towards self-care has reduced and he does not shower or brush his teeth regularly. He notes poor appetite and can miss meals. He has eventual plans of “moving out bush”. He states that his wife has had to change her working patterns and work from home two days per week to help care for Mr Ford.
• He describes self-harm ideation and has previously described homicidal thoughts towards his colleagues/employer.
282 In relation to Mr Ford’s use of cannabis and alcohol, Dr Shaikh stated:
There is a history of substance and alcohol abuse dating back to his early teens, and this has led to multiple convictions. He has been inconsistent about his reports of alcohol and marijuana usage to specialists, despite his psychologists’ comments about his honesty.
283 Dr Shaikh opined that Mr Ford’s previous history of depression, childhood adversity and recreational drug and alcohol misuse likely created a level of pre-existing vulnerability, to which reference was also made in Dr Moore’s reports. However, Dr Shaikh thought it was difficult to ascertain the extent of Mr Ford’s pre-existing vulnerabilities and did not believe he would have presented with symptoms suggestive of a formal diagnosis prior to his nominated stressors.
284 Dr Shaikh reached the following conclusions:
If indeed Mr Ford developed a psychiatric condition in response to nominated stressors in August 2016, this condition was an Adjustment Disorder with Mixed Anxiety and Depressed Mood, on the background of personality and other constitutional vulnerabilities. It is difficult to confirm if his complaints then were related primarily to the sexual harassment or to other matters, such as him being notified of investigations into his posts on social media. Evidence, however, suggests a consistent linkage with the experienced sexual stressors.
It is my opinion that the primary maintaining factors to Mr Ford’s mental ill health in the past two years have been his involvement in compensation/Federal Court proceedings. Mr Ford, as well as his wife, have themselves confirmed that there has been substantial stress from the proceedings and deterioration in his mental health in recent months. Both look forward to the court date in April 2019, after which he will likely experience improvement in symptomatology. Mr Ford’s mental health status is not stable enough to confirm permanent impairment.
I also note that there has been recreational drug use, even into 2018, as well as involvement of alcohol misuse. His marijuana use has very likely contributed to some of his experienced symptomatology and interfered with recovery.
I have noted inconsistencies such as being capable of driving long distances and travelling overseas despite reports of seriously impaired cognition and tremulousness.
285 Dr Shaikh made the following comments in relation to the cause of Mr Ford’s condition:
I have commented above that while there may have been a linkage to his initially described sexual harassment in 2016, the maintaining factors have primarily included his involvement in the compensation process, with potential additional contribution from cannabis misuse in causing paranoia-based phenomena. This diagnosis is based on criteria in the DSM classification system.
286 Dr Shaikh described the severity of Mr Ford’s condition to be moderate. He concurred with Dr Byth that Mr Ford’s condition was unstable. For that reason, Dr Shaikh did not believe it appropriate to calculate Mr Ford’s permanent impairment, as such a calculation should only be made when a condition is stable and stationary. Dr Shaikh instead provided a suggestive psychiatric impairment rating, being around 7% WPI. Dr Shaikh disagreed with Dr Byth’s suggested permanent impairment rating and opined that Dr Byth included Mr Ford’s experienced distress regarding the compensation proceedings in calculating that psychiatric impairment rating.
287 A fourth medico-legal report of Dr Shaikh, dated 20 June 2019, was annexed to Dr Shaikh’s third affidavit. Dr Shaikh produced that report in light of further extrinsic materials received, namely:
a report of Dr Byth dated 22 May 2019;
a report of Dr Barlow dated 8 August 2018;
medical records produced by Metro South Hospital and Health Service (Logan Bayside Health Network);
medical records produced by Queensland Health (Redland Hospital);
medical records produced by Victoria Point Medical and Dental Centre;
medical records produced by Main Street Medical and Dental Centre;
medical records produced by Beenleigh Health Alliance; and
medical records produced by Whites Road Medical Centre.
288 In that report, Dr Shaikh commented that the available documentation with which he had been provided suggested that Mr Ford suffered from a “battery of history of mental health problems”. In particular:
• He engaged in recreational drug use in his teens and there was history of alcoholism which interfered with his working life.
• There is past history of social anxiety, and him using alcohol and drugs to cope with the same.
• He was treated with antidepressants between 2002 – 2005.
• After his relocation to Queensland in 2005, and in 2006, was assessed by the Bayside Mental Health Service, diagnosed with Major depression, and noted to have harmed himself. Various other psychological complaints were noted, and he was using alcohol (20 drinks to blackout) and marijuana.
• Bayside Mental health records noted Cluster B personality disorder traits.
• He continued his antidepressants, and in 2012, he separated from his wife. He continued to misuse alcohol and marijuana.
• In subsequent years, he attempted to get off his antidepressant but experienced a recurrence of symptoms.
• There is evidence to suggest depressive phenomenon in early 2014.
• When he commenced employment with Ingram's, he was already on antidepressants.
• In September 2015, he experienced emotional fluctuations and suicidal ideation, but there was no discussion of work stressors.
289 In relation to this history, Dr Shaikh made the following comments:
I believe there is sufficient information from records to confirm an extended history of mental illness, alcohol use and recreational drug use. Despite his reports otherwise, he had been on antidepressants for several years preceding nominated stressors, and there is also evidence to suggest depressive symptoms prior to nominated stressors.
On the basis of available information, it is reasonable to state that he suffered a pre-existing Major Depressive Disorder and had done so for several years. In addition, he had experienced relapses in his condition at varying points between at least 2002 – 2016. There is evidence to suggest that alcohol and marijuana use would have likely been a further contributor towards him experiencing depressive phenomenon.
290 Based upon the further information Dr Shaikh had received, Dr Shaikh gave the following opinion on the appropriate diagnosis of Mr Ford:
With further information to suggest substantial past and pre-existing psychiatric history, I now believe a diagnosis of Major Depressive Disorder of recurrent nature was pre-existing at the time of commencement of his employment with Ingham’s [sic] and at the time of his reported stressors. Inconsistencies in timelines and reporting aside, based on his reports, there is potential that in mid-late 2016, he experienced an aggravation of his pre-existing condition of Depression. I have previously expressed my confusion about his subsequent reported deterioration in late 2017/2018. But this may be, along with ongoing legal/ compensation stressors, due to the natural progression of his pre-existing depressive disorder. There also now is further information to doubt the veracity of Mr Ford’s reports, and it is difficult to fathom the lack of discussion of work stressors with his GP and late reporting of nominated issues.
291 In relation to the causation of Mr Ford’s condition, Dr Shaikh made the following comments:
I have previously explained the complexity in discussing causation, and with further information, the complexity only increases. Mr Ford clearly experienced a pre-existing depressive disorder at the time of nominated stressors.
There is likely to have been a contribution towards the aggravation from the car accident of July 2016, his concerns about work shifts, and the written warning of August 2016. Based on Mr Ford’s reports, however, the extended period of sexual abuse was the primary contributor to his deteriorated mental health. My role is not to be an investigator in these matters, but albeit the inconsistencies and lack of reporting, there does appear to be a causal link between his reported stressors and the deterioration in his mental health. I continue to maintain, however that from mid-2017 onwards, the major contributors have been his involvement in compensation and federal proceedings.
292 Dr Shaikh agreed during cross-examination that the reason for his diagnostic change between his reports dated 10 January 2019 and 29 January 2019 was due to him having read the further medical history documents relating to Mr Ford (transcript p 947 ll 44-45).
293 In respect of Dr Shaikh’s evidence the applicant submitted, in summary:
Dr Shaikh is “out on a limb” with his diagnosis, which Dr Shaikh has changed a number of times, and he needed to demonstrate excellent reasons to differ from “those treating him” and from Dr Byth.
Dr Shaikh diagnosed Mr Ford using the dated DSM IV, whereas Dr Byth diagnosed Mr Ford using the current diagnostic tools under DSM V and is thus more reliable.
Dr Shaikh identified some of the hallmark symptoms of PTSD, but failed to ask Mr Ford about flashbacks or pick up on Mr Ford’s nightmares, which undermined Dr Shaikh’s diagnosis.
Dr Shaikh had a somewhat negative view of Mr Ford as a person, and would not give Mr Ford credit for anything including the fact of maintaining, through clear difficulties, a stable family life and a stable work life. Dr Shaikh also took a negative view wherever he possibly could, for example, with job changes, ignoring the real world of unskilled labour or people in Mr Ford’s world.
Dr Shaikh relied on epidemiological studies, however Mr Ford had been an intermittent binge drinker and his use of marijuana had been at the end of a drinking session.
294 The respondents submitted in summary in relation to Dr Shaikh’s evidence:
Dr Shaikh gave clear evidence to explain the change in his diagnosis based on his observations of Mr Ford across the various consultations he had with him, and the eventual disclosure of medical records which catalogued a long history of mental illness.
The applicant’s criticism of Dr Shaikh’s methodology was baseless. Dr Shaikh gave compelling evidence that he used DSM IV and DSM V in circumstances where across Australia, in different jurisdictions, there remained an institutional preference for one over the other.
Dr Shaikh was an impressive, responsive and experienced expert witness, and his evidence should be preferred to the evidence of Dr Byth.
Dr Shaikh did not start from the proposition that Mr Ford’s claims were true; he did not engage with whether the claims were true or not.
Comparison of evidence
295 Notwithstanding that in Agreed Issue 6 of the Statement of Agreed Issues for Determination, the parties asked me to determine whether I preferred the expert opinion of Dr Byth or Dr Shaikh in respect of a number of matters, both parties submitted that there was limited value in the Court examining the medical evidence of Dr Byth and Dr Shaikh at this stage. This was because the expert evidence would be of most relevance in the context of assessing compensation and quantum amounts in the event that the Court found in favour of the applicant (transcript pp 1300-1301).
296 In my view however, in the context of liability, there is value in assessing the credit of and weight to be attributed to the evidence of the expert witnesses, and making a finding as to the expert evidence I prefer. My determination in this respect is not only in response to detailed submissions made by the parties as to reliability of the evidence of the respective experts. It is also relevant to the assessment of the credit of Mr Ford – the applicant in particular stated that “Mr Ford’s evidence cannot be assessed without regard to his diagnosed medical condition of post-traumatic stress disorder.” If I do not accept that Mr Ford suffers PTSD, this finding affects my assessment of Mr Ford’s evidence, and his claims in these proceedings.
297 Overall, Dr Byth was confident and open to providing his opinion. He was a helpful witness and did his best to answer the questions at hand. However on balance, I prefer the evidence of Dr Shaikh to the evidence of Dr Byth. I do so for the following reasons.
298 First, Dr Byth’s views were formed on the basis of only one, one-hour consultation with Mr Ford (transcript p 734 ll 4-7) in June 2018. This can be contrasted with the three separate consultations Dr Shaikh had with Mr Ford between March 2018 and January 2019. It must follow from the greater number of consultations, over a period of time, that Dr Shaikh had a greater opportunity to assess and diagnose Mr Ford’s psychiatric condition, and to ask questions of Mr Ford, than did Dr Byth.
299 This is reflected by the fact that Dr Shaikh’s reports appear more detailed than Dr Byth’s reports, particularly in relation to Mr Ford’s psychiatric complaints. An example of Dr Byth’s comparatively reduced opportunity to obtain adequate information from Mr Ford (which appeared to influence Dr Byth’s assessment of Mr Ford in terms of the severity of Mr Ford’s incapacity) was Mr Ford’s assertion that he was so severely affected by his condition that he was not able to leave the house or socialise (transcript p 745 ll 19-32). However, there was evidence to the contrary, including Mr Ford’s travel to New Zealand for a wedding, participation in ju jitsu, and attendance at the gym on a regular basis. It appears that Dr Byth was not aware of any of this evidence at the time of seeing Mr Ford. In comparison, Dr Shaikh had the opportunity to build upon the information he obtained from Mr Ford over his multiple consultations.
300 Second, to the extent that Dr Shaikh modified his diagnosis following receipt of further material, I consider this to be an appropriate response by an expert witness. I note, however, that Dr Byth appeared reluctant to reconsider or modify any aspect of his diagnosis, notwithstanding the receipt of further material, or to make appropriate concessions in the face of that material. In particular, I note:
At para 8.1 of Dr Byth’s 19 June 2018 report, Dr Byth noted that Mr Ford described a happy childhood and said he was not abused. However, there was evidence provided to Dr Byth (in particular, the report of psychiatrist Dr Philip Kneebone dated 19 December 2002) that:
[Mr Ford] described his father as a ‘liar and a cheat’. He said that his mother was physically and emotionally abusive towards him during his childhood.
As Dr Byth annexed the report of Dr Kneebone to his own report of 25 June 2019, I infer that Dr Byth received this report of Dr Kneebone between the preparation of his third and fourth reports. However, Dr Byth neither referred to this specific information concerning Dr Kneebone’s observations in terms of his earlier comment that Mr Ford claimed to have had a happy childhood, nor appeared to take these observations into account in respect of his diagnosis of Mr Ford.
At the time that Dr Byth saw Mr Ford, Mr Ford did not tell Dr Byth of a violent assault Mr Ford said he endured from a Maori gang in New Zealand when he was 18, where Mr Ford was kicked until he passed out and “thought he would be murdered”. This incident was described by Mr Ford to psychiatrist Dr Thomas Moore and mentioned in Dr Moore’s report dated 27 August 2018 (I understand that Dr Moore had assessed and treated Mr Ford based on a referral from Mr Barlow). The report of Dr Moore was provided to Dr Byth, again some time between the preparation of Dr Byth’s third and fourth reports, and annexed to his fourth report. Dr Byth accepted that such an event could initiate the type of symptoms associated with PTSD and cause a depressive illness (transcript .p 727-728). However, Dr Byth did not refer to Dr Moore’s observations in his fourth report.
I note Dr Moore also commented in his report that Mr Ford reported having dropped out of school, shortly after moving schools, following an incident at his previous school where the principal “grabbed him by the hair and hit his head into a chair due to conflict from the night before outside a school dance”. Again, this information was not referred to by Dr Byth in his fourth report, but directly contradicted his earlier notes of Mr Ford’s “happy childhood”.
301 Further, despite being provided material produced pursuant to subpoenas relating to earlier depressive episodes of Mr Ford (including as late as 2014), and Mr Ford’s continuing prescriptions for the anti-depressant Cipramil in February 2014, April 2014, February 2015 and April 2015, Dr Byth maintained that Mr Ford possessed no pre-existing impairment, or no significant pre-existing impairment because:
…he was working and because he was coping with his social relationships apparently, I thought, before the incident occurred. So I did make an appraisal of it and I had an impression about it, but I didn’t run through the whole [psychiatric impairment rating scale] scheme on it because I thought at the time it wasn’t – there wasn’t any significant impairment.
(Transcript p 723 ll 39-43.)
302 In my view this conclusion is not logical, and potentially demonstrates inflexible thinking on the part of Dr Byth in respect of Mr Ford.
303 Third, aspects of Dr Byth’s evidence suggested that his views of Mr Ford were skewed by sympathy and a reluctance to press Mr Ford for information which could have assisted Dr Byth in his diagnosis. In particular, I note the following exchange during the hearing:
And I suggest to you, Dr Byth, that when you take a history of a patient presenting to you about their childhood, about their previous experience of mental illness, those are significant features in how you then assess them, aren’t they?--- Yes. We take them into account if there has been previous stressful events.
Yes. And criminal history much the same?---That’s right.
Because a criminal history can, in some cases, tell you something about someone’s impulsivity or their moral conscience or lack of it?---That’s right.
And it might also tell you something about their honesty?---Right.
Do you accept that?---In this particular case. I mean, when I was interviewing Richard Ford, he was very distressed and agitated. And, I mean, I may – I may have not sort of given him sufficient time or lead to elaborate on that. That’s – you know, I could be remiss myself there at that point, you know, that I - I recall asking him, “Were you abused or not?” and he said, “No”. But he was sort of tired and, you know, not wanting to linger on it so I didn’t press him. And it’s not uncommon to find yourself in that sort of situation with an agitated, distressed patient where, you know, either you should or you would like to stay - examine a situation in more detail. But if they’re sort of tiring and they’re distressed and just wanting to get on and get the whole thing over with, often you get a sort of patchy history with a patient with PTSD, which is not desirable, but it’s common in some ways. But I - - -
Those matters form at least part of the factual basis upon which you then make your assessment, do they not?---That’s true. Yes.
And so if you are not able – I’m sorry, if your evidence is that – I’m sorry, I withdraw that, your Honour.
Is your evidence that you feel that June 2018 assessment was based on an incomplete medical history or psychiatric history?---Well, there were some things he left out, but I didn’t think they were important things that he left out. In fact, when I interviewed him, my impression was the opposite, really, that he was excessively frank or honest. Or not exactly honest, but very open about a lot of things that he didn’t really have to be or that one wouldn’t be proud of or need to disclose even. So I sort of had the impression that given the restraints of his being agitated and distressed and upset in an interview situation, that he was doing his best to sort of help me through the history gathering process. But in retrospect I probably - if I had known, I should have sort of gone - gone back at the end and sort of gone in greater detail into those - some of those areas, which I think he would have. I don’t think he would have – I think if I had, you know, particularly asked him, I suppose he probably would have reluctantly given me that history but - - -
Well, Dr Byth, you specifically just said that you asked him if he was abused and he said no?---Yes. Yes.
Yes?---But I thought it might have been just to sort of get me off his back and just to sort of move on with the interview.
Well, it’s also possible, isn’t it, that he knew you were assessing him for his claim in this matter and he was giving you what he considered to be a version, the best version of himself that would help him. You can’t discount that possibility, can you?---No. Well, I suppose in his mind the traumatic event at work was the – or the series of traumatic events at work was the thing he was most pre-occupied with and he - - -
That’s what he wanted to talk about, wasn’t it?---That’s right. Yes. Yes.
(Transcript p 730-731.)
304 Dr Byth commented that there were often omissions in the recall of a patient’s medical history, due to the fact that they were not “normal people”, in the sense that the patient was depressed, or anxious, or upset by the material being discussed, so they could omit details (transcript p 721 ll 28-36). While this may be so, there was evidence that, at least with Dr Shaikh, Mr Ford had deliberately withheld relevant medical history (transcript p 385 ll 1-31). Despite material being put to Dr Byth during cross-examination directly inconsistent with answers Mr Ford had given Dr Byth during the consultation, Dr Byth insisted on maintaining not only his diagnosis, but his view that Mr Ford was honest, and at most “tired and distressed” during the consultation (transcript p 733-734). I consider Dr Byth’s views of Mr Ford to be questionable and lacking adequate justification.
305 Fourth, the applicant criticised Dr Shaikh for declining to give Mr Ford “credit” for his “resilience” as demonstrated by Mr Ford’s maintenance of a stable family life and stable work life notwithstanding the challenges Mr Ford had faced. The applicant claimed that Dr Shaikh took an unduly negative view of Mr Ford.
306 I do not accept that Dr Shaikh took a negative view of Mr Ford, such as to improperly influence Dr Shaikh’s approach to diagnosing Mr Ford’s condition. I note, for example, the following exchange during cross-examination:
Now, you talk about pre-existing vulnerabilities at – in your reports. Have you picked up on the following in Mr Ford’s history – and I’m asking you generally – that despite the ups and downs in his marriage he has maintained a relationship with his wife for many years?---Yes. I don’t – sorry. Carry on.
And then he has a stepson in the family unit, and there’s a good relationship with the stepson. Have you picked that up?---Yes, I believe he has maintained good relationships with many family members.
With his daughter and now - - -?---Even in New Zealand.
No. And – well, the stepson was living in the house; do you agree?---Yes.
And there’s a daughter, and are you aware that the daughter and the grandchild are living in the house?---I don’t recall, but, yes, that may – very well may have been the case; yes.
And the medical records you’ve seen have shown that to provide for his family on one occasion he went fruit picking for extended periods and lived in his car?---I remember him living in his car. Yes, that may have been the case.
Yes. And that we’ve dealt with that he’s buying a house. Did that come up?---No, I don’t remember.
And do you accept that this – and this is in the period two thousand – I’m specifically referring to the period 2014/15/16, he – and going into 2016 – that’s consistent with him maintaining relationships in the family unit?---Yes.
And with being quite stable in his employment?---I think I’ve referred – I think I responded to the employment question before, which is, I understand he has had multiple changes in his employment. I wouldn’t call that a stable employment status.
Many people change jobs many times for different reasons, don’t they?---Yes. Not 60.
Well, I’m not sure that – anyway, we will deal with that. I don’t want to get stuck on an argument about that?---No. The family situation, I just wanted to make a comment that in some of my reports I’ve recorded some difficult family situations, and I think you’ve alluded to one in the GP records, as well, as having caused depression; some kind of family situation.
And throughout all that he’s still with his wife, who turned up for two appointments with him?---Yes.
Now, he has raised childhood issues and adolescent issues with his treating psychiatrist?---Yes.
And he even told you about abuse; is that right?---Yes. Some of that. Yes.
Yes. And all that bespeaks a resilient individual. You have to give him recognition for being resilient in the face of those things?---Yes. I wouldn’t describe Mr Ford as being resilient.
What’s that; sorry?---I wouldn’t describe Mr Ford as being resilient.
HER HONOUR: Why is that?---Your Honour, this is a gentleman who has had an extensive history of depression. He has suffered depression on various occasions. He has used – he has misused alcohol. He has misused recreational substances. He has had an extended history of criminal charges in the past. He has decompensated quite substantially in the past. So when he has been unwell he has been unwell to the extent of being suicidal and requiring treatment. That doesn’t indicate to me that this is a resilient individual. And I think – I was just going to make reference to the fact that even Dr Moore’s assessment – his treating psychiatrist at one point – I think has made reference to something similar, suggesting that – I will just make note of that. So Dr Moore – I don’t have the report here but he has mentioned along the lines that “I get the impression he has a borderline intellect and ..... of different attachment as a child and the cumulative difficulties of a boundary-less early life experience – frequently reverts back to themes of revenge and retribution”. He describes features of complex PTSD with additional associated feature of a borderline-personality style predating the workplace incident but markedly exacerbated by them. It just indicates to me that the resilience level is not what I would describe as being good or high.
MR REIDY: So at least in a period leading up to going to Inghams’, you give no credit for resilience for holding down a job for an extended period before that?---Your Honour, resilience is not specific to a situation. Resilience is, in general, resilience and if you had to ask me – I’ve already given the reasons why I do not believe Mr Ford is a highly resilient individual.
So, basically, whatever the stability in his family life and his work life in the lead-up to Inghams’, you don’t credit that with any - - -?---I think you’ve described that as stable.
Sorry. Can I just – sorry, Dr Shaikh?---Sorry. Sorry.
Do you mind if I finish the question. You don’t regard that as, in any way, relevant to a human being being a resilient individual?---No. And that’s because I don’t regard his work life to be stable. I don’t regard his history of changing various employments to be stable and I have evidence to suggest that there has been problems in terms of family life. It may not be to an extent – but I don’t believe maintaining the same relationship as the only criteria or qualification for someone to be resilient. If this was a resilient individual, there perhaps wouldn’t be as much history of alcohol problems, drug-related problems, convictions and charges, a history of previous suicidal ideation, acute deterioration with stressors, difficulties in shift work, which would have caused depression, and similar phenomena. All that comes on the background of difficulties in childhood and these issues had also been noticed seemingly by his treating psychiatrist. So I believe those are the reasons why I would not describe him as being highly resilient.
(Transcript pp 968-970.)
307 Dr Shaikh’s responses, and opinions expressed in those responses, were reasonable, and do not display any partisanship on his part in respect of Mr Ford.
308 Similarly, the applicant’s criticism of Dr Shaikh as failing to appreciate “the realities of life” for a person of Mr Ford’s background and education is not, in my view, substantiated. Dr Shaikh was well aware that Mr Ford’s employment background was “all labouring work” (transcript p 941 l 27). However, he did not agree that Mr Ford’s employment was “steady”, and explained why he took that view.
309 The favourable view of Mr Ford repeatedly pressed by his Counsel on Dr Shaikh during cross-examination was not one which Dr Shaikh unreasonably refused to accept.
310 Fifth, the applicant reserved his greatest criticism of Dr Shaikh for Dr Shaikh’s use of diagnostic tools under DSM IV. The applicant submitted that the diagnosis of Dr Byth must be more reliable, because Dr Byth’s diagnosis resulted from his use of DSM V, which was “contemporary medical practice rather than outdated medicine.”
311 Dr Shaikh explained at transcript p 944-947 that he used diagnostic tools under both DSM IV and DSM V during cross-examination for the following reasons:
The criterion for conditions had already been established in earlier DSMs. DSM V simply relieved the diagnostic tool of the multi-axial classification (as the axes did not make sense), so that the same diagnosis could be made without needing to differentiate between different axes.
There are differences in the “umbrellas” of each psychiatric condition. For example, what may once have been a condition considered to be in the class of anxiety disorders may now be classed under stress-related disorders.
There have been changes to the definition of psychiatric conditions, but none that were relevant in terms of Mr Ford; Mr Ford would have been diagnosed with the same conditions under either classification system.
Australian systems used DSM IV and DSM V, depending on jurisdiction (including for whom the report was being prepared).
WorkCover still used DSM IV, which was why he included both DSM IV and DSM V in his reports. He used DSM IV and DSM V for all his reports and most (80-90%) request that he use DSM IV for his reports.
DSM V is the standard diagnostic approach taken by many psychiatrists, but in terms of the general usage of DSM in Australia, DSM IV was more prevalent than DSM V.
Notwithstanding that DSM V had been available for six years, DSM V had not been universally accepted, at least in Asutralia, as being a reliable indicator for diagnosis.
312 I note that Dr Byth also gave evidence at transcript p 719 ll 1-27 about the changes betweenn DSM IV and DSM V in relation to PTSD, in summary as follows:
DSM IV had two checklists for PTSD (one for military and one for civilians), whereas DSM V had a single checklist.
DSM V added some extra questions (it withdrew the necessity of the patient complaining of horror or severe distress at the time of the event).
The actual core crtieria had not really changed between DSM IV and DSM V.
313 The evidence of Dr Byth was not inconsistent with the evidence of Dr Shaikh in relation to there being little relevant difference between the application of DSM IV and DSM V, particularly in this case. Further, the applicant identified no evidence (of Dr Byth or anyone else) inconsistent with Dr Shaikh’s statements concerning the prevalence in Australia of DSM IV, or that diagnoses did not change substantially between DSM IV and DSM V.
314 The applicant’s assertion that DSM IV was “outdated medicine” is simply not supported by the evidence before the Court.
315 I am not prepared in the circumstances of this case, and in the absence of more than mere assertion on the part of the applicant, to find that Dr Shaikh’s diagnosis is unreliable, or less reliable than Dr Byth’s diagnosis, because Dr Shaikh made his diagnosis of Mr Ford by reference to DSM IV and DSM V.
316 Sixth, Dr Shaikh took the view that Dr Byth’s assessment of Mr Ford under the Psychiatric Impairment Rating Scale (PIRS) criteria was to some degree inconsistent with the objective facts concerning Mr Ford. The material before the Court was supportive of Dr Shaikh’s view in this respect.
317 In his first report dated 19 June 2018, Dr Byth stated that:
14.1 I assessed his permanent impairment using PIRS, an instrument in which I have been specifically trained.
14.2 As more than 12 months has elapsed since he left work, and he has had some psychological treatment, I thought his condition was sufficiently stable to be assessed for permanent impairment.
318 However, in his second report dated 5 December 2018, Dr Byth stated:
3.1 His problems with severe PTSD are inherently unstable, and they are liable to exacerbations of symptoms when he is exposed to related stimuli i.e. reminders of the traumatic events at work.
319 Dr Byth, in his first report, assessed Mr Ford as being overall “Class 4 Severe Impairment”, the median class of criteria being a rating of 4 (namely severe impairment), and a whole person impairment being 47%, with no reduction for any pre-existing impairment.
320 In this respect I note, for example:
In relation to the area of function “travel”, Dr Byth assessed Mr Ford as Class 3 “moderate impairment” under the PIRS, namely:
Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
In relation to the area of function “social and recreational activities”, Dr Byth assessed Mr Ford as Class 4 “severe impairment” under the PIRS, namely:
Severe impairment: Never leaves place of residence. Tolerates the company of family member or close friends, but will go to a different room or garden when others come to visit family or flatmate.
In relation to the area of function “social functioning”, Dr Byth assessed Mr Ford as Class 4 “severe impairment” under the PIRS, namely:
Severe impairment: Unable to form or sustain long term relationships. Pre-existing relationships ended, eg lost partner, close friends. Unable to care for dependents, eg own children, elderly parent.
In relation to the area of function “adaptation”, Dr Byth assessed Mr Ford as Class 4 “severe impairment” under the PIRS, namely:
Severe impairment: Cannot work more than one or two days at a time, less than twenty hours per fortnight. Pace is reduced, attendance is erratic.
321 The position taken by Dr Byth can be contrasted with that of Dr Shaikh.
322 In his third report dated 29 January 2019, Dr Shaikh stated that, in his view, it was inappropriate in Mr Ford’s case to calculate permanent impairment, as he did not believe Mr Ford’s condition was stable and stationary. Dr Shaikh noted there had been sufficient fluctuations in Mr Ford’s mental health, with recent deterioration, and an ongoing involvement in the compensation process, which precluded a stage of stability. However, Dr Shaikh provided a suggestive psychiatric impairment rating, noting that Mr Ford’s impairment was likely around 7% WPI and not as documented by Dr Byth.
323 Later in his third report, Dr Shaikh made the following comments on Dr Byth’s views of the level of Mr Ford’s impairment:
I disagree with the opinion of Dr Byth, both in relation to diagnosis and particularly in relation to impairment. Dr Byth essentially provides a “here and now” assessment based entirely on information provided by Mr Ford, without attempting to separate the distress by the initial injury and the distress by his involvement in court proceedings. Dr Byth notes that Mr Ford’s condition is not stable yet provides a permanent impairment rating.
Dr Byth notes an impairment of Class 3 in travel, when it is noted that Mr Ford has been capable of driving long distances, and even undertake interstate travel. He comments on a Class 4 rating, when Mr Ford is not housebound and can go out for appointments, and for a wedding in NZ. He comments on a Class 4 impairment in Social Functioning, when Mr Ford clearly has a good relationship with his wife, without periods of separation. He comments on a Class 4 impairment in Adaptation, when Mr Ford’s emotional status is likely to improve in near future, and he himself has intentions of working as a truck driver, or in a similar occupation.
324 During cross-examination, Ms Reece for the respondents drew Dr Byth’s attention to Dr Byth’s comment in his 5 December 2018 report concerning the inherent instability of Mr Ford’s “problems with severe PTSD.” The following exchange then occurred:
So in December of 2018, you hadn’t seen Mr Ford again, had you?---No.
You were relying, to an extent at that stage, on some notes from Mr Barlow?---That’s right. I had seen them. That’s right.
HER HONOUR: I'm sorry, what was that?---I beg your pardon? There was some handwritten notes by Chris Barlow, the treating psychologist, your Honour.
Thank you.
MS REECE: And is it the case that – I’m sorry, I withdraw that, your Honour.
I suggest to you, Mr – I'm sorry, Dr Byth, that, in fact, of June of 2018, Mr Ford’s presentation was unstable?---Well, it’s - I’ve probably given confused messages there, obviously, haven’t I? But I was just saying overall that his condition was not likely to improve with treatment - is what I meant to say, anyway. That - that PTSD tends to fluctuate a lot depending on how often the person is reminded of the traumatic event, and the - - -
Well, I’m suggesting, Doctor, that someone preparing for litigation is being reminded of a traumatic event relevantly frequently?---That’s right. So, I mean, theoretically, one, you know, couldn’t apply the PIRS to somebody who has a completely unstable condition. But I think in his case it’s never going – and even though there might be peaks and troughs in the course of his symptoms, they’re never going away completely, and there would be a significant disabling sort of baseline level to it, enough to - to be able to give him an impairment rating. The - - -
It’s fair to assume, isn’t it, that with the conclusion of legal proceedings, Mr Ford would not - or Mr Ford’s condition may, in fact, improve significantly?---Well, in my experience treating people, that has never been the case - that they stay on your books as chronic patients. Whether they win or lose the case, they seem to – these conditions seem to run a life of their own after the legal proceedings are finished, to be honest. I think you will find he will still have PTSD in 10 years’ time. It becomes a chronic, entrenched kind of illness, and especially when it’s complicated by depression and alcohol abuse. Those three together, you know, we’re finding they’re so very hard to treat, particularly, like, in Vietnam veterans, we’re seeing almost all of them have that - those three things together. And their legal handling – like, Veterans Affairs has become much more generous and probably fairer, but it hasn’t made any difference to the number of them that are still needing treatment, you know. So I – unfortunately, I think it’s not the case. It will – he will still be affected by PTSD. But it will come and go. Perhaps, as you’re implying, if he’s not reminded as often by the legal proceedings, there might be fewer exacerbations, but it won’t go away.
(Transcript pp 742-743.)
325 From this exchange, I understand Dr Byth to opine that Mr Ford’s condition was such that Mr Ford suffered from PTSD, would not recover, that there was a permanent significant disability associated with his condition, and that Mr Ford’s condition was sufficiently stationary to permit an assessment by Dr Byth. A concern I have with this evidence, however, is that Dr Byth saw Mr Ford only once. Given that Dr Shaikh saw Mr Ford on three occasions over a period of time, I consider that Dr Shaikh was in a better position to form a view as to whether Mr Ford’s condition was stationary or otherwise.
326 I also note that, during cross-examination, Ms Reece for the respondents drew Dr Byth’s attention to the Class 4 PIRS criterion for the area of function “social functioning”, and the following exchange then occurred:
And that’s just not the case with Mr Ford, is it?---No, I think he’s – I think he’s an unusual person. You know, he has got his own character and his own ways of expressing his anxiety and depression and that. But from what he told me about how he was functioning at home, I found it hard to believe that, you know, his marriage could be regarded as stable in the least. You know, he was going out and drinking heavily at night and having marijuana and nearly passing out. And he was saying he was pretty distant from his wife and irritable at home. And, you know, it would be barely tolerable to live with somebody, I thought from the way he described how he was conducting himself, so - - -
Isn’t that more consistent with class 3:
Previously established relationships severely strained, evidenced by periods of separation or domestic violence.
It’s really not evidence of a loss of long-term relationships, is it?---No, I just thought it was that extreme that he – I couldn’t hardly believe that he was – that she would stay with him under those circumstances. You know, it didn’t seem compatible with living in the same house with somebody to me, you know. And I suppose the other point that impressed me was that he wasn’t very insightful about that. You know, that sort of behaviour pattern to me would be beyond the pale, you know, to anybody – intolerable to anybody else around you. But he wasn’t, you know, thinking that it would lead to an immediate separation or dismissal by his wife. You know, so – but indeed, they had separated before in the past, you know, that he told me about.
Yes. He told you – he told you about previous separations?---So it’s not a typical marriage, and there must be some, you know, loyalty or something ..... able to stay together. But I suppose I’m just saying there that he’s – you know, there’s a very, very severe impairment of his capacity to be empathic with other people and to be – his likeability and liveability within relationships would be very compromised and unstable.
But, Doctor, that’s something which – again, being on his self-report, you don’t really have any way, with respect, of knowing whether he was like that a long time ago?---No, no. That’s true. He might have had periods like that when – years ago when he was more depressed or at times, you know. That’s possible.
(Transcript p 746 ll 7-42.)
327 Dr Byth’s justification for his view concerning Mr Ford’s level of impairment, as explained by him in his answers to questions by Counsel for the respondents during cross-examination (including that he thought Mr Ford was “an unusual person. You know, he has got his own character and his own ways of expressing his anxiety and depression and that.”) was unconvincing. Indeed, Dr Byth appeared disinclined to make proper concessions, and appeared overly sympathetic to Mr Ford.
328 Seventh, Dr Byth concluded that Mr Ford suffered from PTSD, referable to the application of DSM V. The applicant submitted that, in comparison, the evidence of Dr Shaikh was unreliable, because Dr Shaikh had “underestimated grossly the effects of the traumatic situation” of sexual assaults and the severity of those assaults, and this in turn was because initially Dr Shaikh was told that Mr Ford’s claims were unsubstantiated.
329 I do not accept this submission for two reasons.
330 First, I accept that Dr Shaikh is an expert psychiatrist, and that his independent expert opinion was prepared in accordance with the Expert Evidence Practice Note. Dr Shaikh’s opinion concerned Mr Ford’s medical condition, and I do not accept that Dr Shaikh’s expert opinion was coloured by any views of the respondents provided to him.
331 Second, Dr Shaikh specifically gave evidence to the effect that he was not influenced by considerations of substantiation or otherwise of Mr Ford’s claims. I note the following excerpt from his fourth report:
My role is not to be an investigator in these matters, but albeit the inconsistencies and lack of reporting, there does appear to be a causal link between his reported stressors and the deterioration in his mental health.
332 I further note the following exchange between Counsel for the applicant and Dr Shaikh:
And I would suggest to you that the fundamental reason for your not diagnosing PTST [sic] is that you have underestimated grossly the effects of the traumatic situation?---Sorry – sorry, I was reading - - -
Of sexual assaults. You have underestimated – underestimated - - -?---No, I think I’ve already mentioned that he did have sexual assault, and that’s one of the criterias [sic] for PTSD.
But you’ve underestimated the severity of those?---Severity doesn’t relate – there’s no question of severity in PTSD.
Based on - - -?---It’s a sexual assault, or not.
Based on being initially told that it was unsubstantiated?---There was no relevance to whether it was substantiated or not. A PTSD diagnosis is based on experiences, not confirmation that that – whatever the person suggests occurred or not. If the person has perceived that to have occurred, it’s likely to have occurred for a diagnosis of PTSD.
And you, in fact – and I won’t take you to it, we can read it later – but, in one of your reports you actually pick up on that point of unsubstantiation. You – you make a reference - - -?---I may have, but that’s not a reason for – can I just – sorry – I just – you mentioned that the psychiatrist diagnosis PTSD. I will just make reference to Dr Moore saying he describes features of a complex PTSD, which is what I’m referring to as well. There are features of a complex trauma. Sorry. I just wanted to make reference to that.
(Transcript p 984 ll 11-36.)
333 It is clear that, in rejecting PTSD as the condition Mr Ford suffered, Dr Shaikh was not influenced by any views of the respondents concerning Mr Ford’s claims, or even the truth of Mr Ford’s claims. As Dr Shaikh stated, a PTSD diagnosis is based on experiences, not confirmation that events alleged by the person occurred or not. I am not prepared to find that Dr Shaikh’s evidence is unreliable for the reason submitted by the applicant.
334 Finally, I reject the applicant’s submission that Dr Shaikh is “out on a limb” (compared with other medical practitioners) in his conclusion that Mr Ford suffered from Major Depressive Disorder of a recurrent nature that was pre-existing at the commencement of his employment with Inghams. In this respect, as I have already observed, I give no weight to Mr Barlow’s views concerning whether Mr Ford suffered PTSD – Mr Barlow is not a psychiatrist, nor an expert in that field, and his evidence is not expert evidence.
335 Other than the opinion of Dr Byth, the applicant relied for support on an opinion of psychiatrist Dr Thomas Moore dated 27 August 2018. Dr Moore in his report materially stated as follows:
On assessment for psychological mindedness Mr Ford presents as polite though of limited psychological flexibility. He appears to have an external locus of control and limited capacity to self sooth. This appears to predate the incidents recorded in the claim and appears to have been exacerbated. He appears to describe the attachment difficulties and complex responses of neglect and early insufficiently directed individuation. He describes features of a Complex Post Traumatic Stress Disorder with additional/associated features consistent with a Borderline Personality style predating the workplace incident but markedly exacerbated by them. This is likely to exacerbate underlying coping schema including use of anger, violence, and intoxication to manage uncomfortable emotions.
336 In respect of Dr Moore, I note in particular that:
Dr Moore gave no evidence in these proceedings, and was never called for cross-examination; and
the applicant misrepresented Dr Moore’s diagnosis in submitting that Dr Moore considered that Mr Ford suffered “PTSD” and was treating him for that condition (transcript p 1299 l 35). Rather, it is apparent from the material before the Court that Dr Thomas diagnosed Mr Ford with complex PTSD.
337 Dr Shaikh explained the concept of complex PTSD in his evidence. It is moot whether the applicant or his legal representatives understood the difference between complex PTSD and PTSD, as explained by Dr Shaikh, and as was evident from the following exchange between Counsel for the applicant and Dr Shaikh:
And which treating psychiatrist diagnosed PTSD?---Dr Thomas ..... diagnosed complex PTSD, which is somewhat different to PTSD as we understand.
All PTSD is complex, isn’t it?---No. It’s not.
No?---No. Complex PTSD is a specific term not discussed in the DSM classification system. Complex PTSD generally relates to individuals who have gone through extensive trauma in their past and in their childhood. So people who are sufferers of sexual abuse as a child – who are sufferers of other major traumas as a child and then have difficulties in their adult life functioning are the ones who are diagnosed as complex PTSD.
But you don’t agree with that diagnosis?---I agree that there are issues from childhood and problems in relation to - - -
No. Sorry. My question was you don’t agree with the diagnosis of PTSD?---No. I don’t.
Now - - -
HER HONOUR: Sorry. Can I ask why?---The diagnosis of PTSD? So - - -
You know – sorry. It’s complex PTSD that we’re talking about now, isn’t it?---Yes. If it is complex PTSD, I have a general understanding that, with the history that has been made available to me, that complex PTSD is a reasonable diagnosis in - - -
Of Mr Ford?---Of Mr Ford. Yes.
All right. But not specific PTSD, which is what - - -?---Dr Byth has made reference to. Yes.
(Transcript p 970 ll 17-46.)
338 As Dr Shaikh properly conceded during re-examination:
And Dr Moore notes, does he not, Dr Shaikh, that the features which he’s describing there predated the workplace incident, but were markedly exacerbated by them?---I’m not sure, to be honest, because he says - he describes features of complex PTSD with borderline personality style predating the workplace incident. I’m not sure if he’s referring to just the borderline personality style or complex PTSD as well.
Certainly. Sure?---But I believe he potentially is.
(Transcript p 985 ll 17-24.)
339 I note Dr Moore’s diagnosis, but in the circumstances do not consider that it undermined the respondents’ position or the evidence of Dr Shaikh in any way.
Conclusion
340 On balance, I prefer the expert opinion and diagnosis of Dr Shaikh in relation to Mr Ford’s medical condition, to the expert opinion and diagnosis of Dr Byth. To that extent, I do not accept that Mr Ford suffers from PTSD as he claims, and as Dr Byth found.
CREDIT OF WITNESSES
341 The credit of witnesses in this case is a critical issue for determination. Mr Ford’s credit in particular is critical.
342 The assessment of credit is one best achieved through consideration of the evidence before the Court. In my view, it is efficient and convenient for me to make overall findings of credit, referable to the entirety of evidence a witness gave. I will revisit credit of relevant witnesses insofar as is necessary when examining specific allegations of conduct in Agreed Issue 1.
Mr Ford
343 In relation to Mr Ford’s credit the applicant submitted in summary as follows:
He was an unsophisticated man, who presented as timid and polite.
He was a honest witness who frankly conceded matters unhelpful to his case.
He maintained a core consistency about the central allegations from the time he spoke with his wife through to his AHRC complaint, his affidavit evidence and his cross-examination.
His account in Court has been entirely consistent in its essential details with his account out of Court.
Some of his answers in cross-examination could be accounted for by a failure to fully comprehend the questions and being overawed by the environment.
He clearly struggled with his recollection on tangential issues such as dates.
His poor state of mental health had affected his capacity as an historian, and was evident for example in his involuntary twitching and “shutting down”.
He demonstrated limited understanding at times and was evidently confused by some of the questions, but he was a witness doing the best he could.
The criticism in relation to his adding new evidence to that in his statement whilst giving oral evidence ignores the effects of PTSD.
There are natural limitations on any person’s memory in recounting an overwhelming number of events, much less someone in Mr Ford’s condition.
It is to be expected with the passage of time and the effects of the illness and the medication on his recall and presentation that he would not give a perfect account of tangential detail.
He was in a very poor mental state towards the end of his employment, particularly after the last incident with Mr Waldock, as he described himself as being pushed to the limit after that incident. He was also in a self-destructive state. He was placed on a number of suicide prevention plans, which indicated his parlous mental state at the time his complaint to the AHRC was made. He had difficulty concentrating and in remembering the details and sequences of events. His poor mental state continued to be poor up to and through giving evidence in these proceedings.
Not all the inconsistencies alleged are made out, such as when he began wearing shorts under his uniform and whether there was a place to sleep in the feather room.
The police statement appeared to be a copy and paste of the AHRC statement, and was given at a time when, just days later, he was placed on suicide prevention. His evidence was that he could not remember anything much about doing the AHRC statement, which is unsurprising. The inconsistency between dates of incidents given in those statements and the dates alleged in these proceedings can be explained by his confused state of mind.
His oral evidence had improved after he had a consultation with a psychologist.
It was clear he experienced more than a general level of discomfort suffered by an ordinary person in the witness box as a result of issues related to his condition. His evidence needs to be assessed in light of the mental state under which Mr Ford was labouring.
344 In relation to the credibility of Mr Ford, the respondents submitted:
Mr Ford was a witness without credit and unresponsive.
Mr Ford gave numerous inconsistent statements about when he said certain conduct occurred. His statement that the conduct was not directed towards him until 6 months after he worked, or perhaps June 2015, is inconsistent with statements that:
(a) the conduct alleged in Agreed Issue 1(a) began in March 2015;
(b) the conduct alleged in Agreed Issue 1(b) began in April 2015;
(c) the conduct alleged in Agreed Issue 1(c) happened in either April or May 2015;
(d) the conduct alleged in Agreed Issue 1(d) happened in either March, April or May 2015;
(e) the conduct alleged in Agreed Issue 1(j) occurred either in October 2015 or February 2016; or
(f) the conduct alleged in Agreed Issue 1(r) occurred either from February 2015 or between August 2015 and September 2016.
The Court must assess the degree of contamination between Mr Ford’s evidence and his three former co-workers Mr Ly, Mr Ogg and Mr Bhardwaj.
In his evidence, Mr Ford made no reference to reports, conversations, complaints or other indications to anybody (including the other witnesses of the applicant).
Mr Ford stated that he had never suffered from anxiety or depression prior to September 2016, however this was clearly untrue.
Mr Ford failed to disclose matters about his medical and mental health history in these proceedings.
Mr Ford gave inconsistent evidence that demonstrated a willingness to construct versions of the truth to bolster his case. For example, in relation to when and why he began wearing shorts under his work pants, his minimisation of working in the hanging room during 2015, and the reason he made the police complaint in 2017.
Mr Ford was unable to explain why he continued to socialise with Mr Waldock even in July 2016, and Mr Phillips in December 2015 or January 2016, when, on Mr Ford’s account, Mr Waldock had been seriously and consistently sexually harassing him for over a year.
Mr Ford was unable to confirm matters in his affidavit where he attempted to corroborate evidence of other witnesses. For example, in relation to conduct that allegedly occurred to Mr Bhardwaj, Mr Ford was no longer sure in cross-examination that he had witnessed that conduct as he alleged in his affidavit.
The submissions concerning the competency of Mr Ford to give evidence were self-serving, and a clear attempt to preserve his credit. Mr Ford was competent to give evidence and no application as to any lack of capacity on his part was made.
Mr Ford’s ability to provide clear, structured responses in his examination in chief to correct specific parts of his evidence was inexplicable when contrasted with his inability to answer directly, or recall matters, in cross-examination. His long answers in re-examination also provided a clear contrast to his demeanour during cross-examination.
Mr Ford gave fresh evidence during cross-examination that conflicted with his affidavit evidence.
Mr Ford was unable to confirm a number of matters in his own evidence, including who was in charge of rostering, who could receive complaints, the desirability of overtime and the location of the allegations.
Mr Ford demonstrated his lack of reliability by his short responses, his inability to clearly recall numerous matters and his failure to make appropriate concessions.
Mr Ford gave inconsistent recollections of conversations with the respondents’ witnesses, including Ms Hines and Mr Storrs, which indicated he was lying about those matters.
The Court should approach Mr Ford’s evidence with significant caution.
345 All witnesses in this matter appeared very nervous during cross examination. Mr Ford in particular frequently appeared distressed, and struggled to give coherent evidence.
346 In respect of his credit, I make the following observations.
347 First, Mr Ford’s evidence in chief as found in his affidavits is detailed. However, his oral evidence given during the hearing was of a very different character. Mr Ford insisted that his allegations were true, despite his difficulty in recalling dates, timelines and frequently detail, but his oral evidence was often confused and his memory (and his preparedness to respond to questions) appeared to be selective.
348 An example of Mr Ford’s vagueness and lack of certainty in respect of his evidence can be seen in the following exchange during cross examination in relation to the difference between Mr Ford’s allegations of “dry humping” and “simulated anal sex”:
MS REECE: Okay. And so you’re saying the difference is that simulated anal sex – or – sorry – simulated genital sex is when there’s no actual touching?---I can’t remember.
Well, that’s what you just said, Mr Ford.
HER HONOUR: I think Mr Ford said no contact.
MS REECE: Okay. No contact.
THE WITNESS: Yes.
MS REECE: And do you agree – is it your understanding that simulated anal sex in the way that you’ve referred to it in your affidavit – is that a contact or a non-contact kind of behaviour?---Non-contact.
Okay. At paragraph 161 of your first affidavit - - -?---Yes.
- - - you say:
Rafferty and Waldock would perform the act when I was in the bent over position. The perpetrator came up from behind me without warning and would grab my hips. The perpetrator would thrust his groin and genital region against my bottom while holding on to me, pretending to perform anal sex on me. I could feel the groin region and genitals of the perpetrator against my body.
?---Yes.
So that is contact that you’re describing there, isn’t it?---Yes.
Do you agree, Mr Ford, that what you’re describing there is the same as what you described for dry humping?---I’m unsure.
Aren’t dry humping and simulated anal sex really the same thing in the way that you’ve described them?---Can you repeat the question, please?
Certainly. Aren’t anal – simulated anal sex acts and dry humping really the same thing given the way you’ve described them?--- I’m unsure.
Well, I will just – I don’t want to labour the point, Mr Ford. You’ve said with dry humping it would mean someone coming up against your bottom, that you could feel their body, pretending to have sex with you?---Yes.
With anal sex – simulated anal sex, you’ve described the same process, haven’t you, in your evidence?---Sometimes they wouldn’t be touching.
(Transcript pp 273-274.)
349 An example of Mr Ford’s selective responsiveness to questions, as well as further illustration of his vagueness and uncertainty, can be seen in his evidence in relation to his interaction with psychiatrist Dr Shaikh:
Do you see there the doctor has written:
Mr Ford notes that approximately 15 years ago, while working with Electrolux in Adelaide and undertaking graveyard shifts, he expressed depressive symptoms and was prescribed antidepressants for around two years.
?---Yes.
Is that what you told Dr Shaikh?---It appears so, yes.
Would you accept that’s what you told him?---Yes.
And you didn’t tell him that you took those antidepressants through 2005 and 2006?---No.
And you didn’t tell him that you took antidepressants through 2013, ’14, ’15 and ’16 and to mid-’16?---Yes.
You did tell him that?---No.
Okay?---No.
All right. Why didn’t you tell the doctor that, Mr Ford?---Because I was – wasn’t in my right mind about remembering all the times I had been on antidepressants, plus I think he would look at me like I had a major mental history and wouldn’t believe me.
You wanted to keep your mental history from him; is that what you’re saying?---No.
So you thought if you told him that you had been on antidepressants as often as you had been that he wouldn’t believe you?---I thought he might think I was mentally ill.
Well, your own doctor is treating you for mental illness, Mr Ford. That’s the basis on which you bring your claim, isn’t it?---I’m unsure.
Well, you understand, don’t you, Mr Ford, that you’re suing the respondents in this matter for causing you a psychiatric injury?---Yes.
Specifically for causing you to develop post-traumatic stress disorder?---Yes.
So are you telling me that when you spoke to Dr Shaikh - - -?---Yes.
- - - you intentionally didn’t tell him about your previous medication on antidepressants over those years that I’ve just set out to you?---I don’t really recall too much of the meeting I had with him and I told him as much as I could. He thought I was a druggo.
Sure. But you’ve just said in your evidence that you thought if you told him - - -?---Yes.
- - - that you had been taking antidepressants for those years that he would think you had a mental illness?---Yes.
And that he wouldn’t believe you?---Yes.
What did you think he wouldn’t believe?---I’m not sure.
I suggest to you, Mr Ford, that what you were concerned about is that Dr Shaikh wouldn’t believe that anything that had happened at Inghams had caused you to feel this way?---I’m unsure.
That’s what you were afraid of, wasn’t it?---I don’t recall.
You don’t recall. What were you worried about? Why were you not telling him?---I can’t remember.
(Transcript pp 384-385.)
350 The lack of responsiveness and absence of detail can be strongly contrasted with his detailed answer to a question I put to him immediately after this exchange, namely as follows:
HER HONOUR: Can I just ask a question, Mr Ford. Can you just remind me what years you were on antidepressants?---2000, I think, and then 2006 on and off for years over that a few periods of time and then off. And then I moved to Rockhampton and I was off them. And then I moved to – back to Brisbane and then I – Lee thought it would be a good idea if I seemed a bit more settled on a lower dose, so I went back to the doctor, I think, then and got a small dose then, but I would have been off and on them as well then ’13, ’14, ’15, ’16, ’17. I’m not too sure. I think, so - - -
(Transcript pp 385-386.)
351 This leads into a second point – namely that, as a general proposition, Mr Ford was either unable or unwilling to give answers to quite simple questions or respond to self-evident propositions of which one would expect him to be aware, or be in a position to easily confirm or deny. This aspect of his evidence was not confined to certain allegations of conduct – rather it was an issue across the board, particularly noticeable when Mr Ford was pressed during cross-examination. I observe at this point that there was nothing inappropriate, unfair, or oppressive in the conduct of the respondents’ case by their Counsel.
352 I note that in endeavouring to answer questions during cross-examination, Mr Ford said “I’m unsure” a total of 174 times, “I don’t recall” a total of 150 times, and “I’m not sure” a total of 38 times. Some of these answers in cross-examination may have been due to Mr Ford’s failure to fully comprehend the question being asked, particularly in the Courtroom environment which was likely difficult for Mr Ford. Indeed, on numerous occasions it was necessary for me to adjourn Court to allow Mr Ford a break in light of his obvious distress.
353 Further, it is appropriate for a witness to make proper concessions if they cannot comprehensively answer a question put to them during cross-examination. As Mason P observed in Bluescope Steel Ltd v De Caires [2005] NSWCA 431 at [35], answering “not sure” and the like to questions can be “understandable, indeed arguably a badge of honesty in a witness”.
354 It is not in dispute that Mr Ford’s mental health was also, at material times, poor. Although I prefer the evidence of Dr Shaikh for reasons I have already given, it appeared to be a view held by both experts that Mr Ford was of poor mental health. The apparent state of Mr Ford’s mental health is an important issue to take into account in assessing his credit, and ability to properly respond to questions.
355 However, ultimately the sheer extent of Mr Ford’s uncertainty and his frequent apparent inability – or potentially reluctance – to answer during cross-examination even simple questions or agree to general and obvious propositions which did not appear to accord with his views, other than by what appeared sometimes to be a default to “not sure”, is concerning in assessing the reliability of his evidence. I make this point against the backdrop of his very serious claims against the respondents. I particularly note that, when faced with clear inconsistencies in his evidence during cross-examination, Mr Ford was frequently unable to in any way rationalise those inconsistencies, or concede inconsistencies – rather he tended to default to “not sure”.
356 An example of this can be seen in his evidence concerning whether he had ever spoken with co-workers about the alleged conduct he claimed to have occurred to him or witnessed happening to others:
All right. I take you to paragraph 300 - - -?---Yes.
- - - of your affidavit. You say, about halfway down – so that’s the – one, two, three – the fourth line – if you go over to a sentence beginning, “I could not talk about it”?---Yes.
In fairness, I will just read you a little bit more of that paragraph to explain – I suppose, to put it in context. You say:
I was shocked by what I saw, even though I had seen and experienced a number of incidents of a shocking nature up to that point. I was shocked each time something happened to me or I witnessed this type of conduct against others. I found the conduct to Phillips disgusting and revolting. I could not talk about it to other employees.
?---Yes.
So that’s the case, isn’t it? You didn’t tell anyone. You didn’t talk to anyone about any of this happening in the factory?---Untrue.
Well, do you agree that you say in your own affidavit:
I could not talk about it to other employees.
?---Yes.
All right.
HER HONOUR: Could I just ask – what do you mean by that, Mr Ford?---By - - - You said – there’s an issue about the extent to which you talked to other employees about it?---Yes. I spoke to a few of my close – close friends, but kept it pretty quiet – just spoke to a couple of real close people about what was going on and how they dealt with it, your Honour.
Thank you.
MS REECE: Mr Ford, have you ever, in your evidence, said you talked to your coworkers about what was happening to you at Inghams?---I’m unsure.
You said in your affidavit:
I couldn’t talk to anyone about what was happening.
?---I’m unsure.
You didn’t say, “I couldn’t talk about it to most people, but just to a few”?---I’m unsure.
And I suggest to you the reason why you’re saying this now is because you know there are witnesses called in your case who say that you had discussions with them?---I’m unsure.
(Transcript pp 294-295.)
357 Another example concerned Mr Ford’s medication history. I note the following exchange during cross-examination:
Well, who prescribed you medication for depression in June, July and August of 2016?---I’m not sure.
You got a script from the Victoria Point Medical Centre in May of 2016?---Yes.
How long did the script last?---Depending upon the doctor, anywhere from maybe, like, three months to four months.
So are you saying that through June, July and August 2016, you were on antidepressants or not?---I’m unsure.
So your evidence before when I asked you if you could confirm that there was no mention of depression in those notes was if it wasn’t a problem, why mention it?---Yes, pretty much.
Mr Ford, that directly contradicts your evidence that in mid-2016, you were experiencing serious depressive symptoms?---I’m unsure.
Well, Mr Ford, I put it to you that when you say you’re unsure, it’s because I’m asking you a question which is difficult to answer, because you know that you’re stuck?---Can you repeat the question please.
Sure. When I asked you before, when I took you through all those notes from the Beenleigh Road Medical Centre from June of 2016 - - -?---Yes.
- - - until that day of 4 September when you complained about sexual harassment - - -?---Yes.
- - - there are no references in that material to depression. Do you recall that?---No.
We’ve just been through that process, Mr Ford. Your Honour, I don’t know if I need to go through that process again.
(Transcript p 370, ll 1-32.)
358 I also note the following exchange:
MS REECE: Look, if I could take you to paragraph 159 of your evidence, Mr Ford?---Yes.
You note in that part of your affidavit that you – so you’ve been describing some feelings that you’ve been having. You say:
I developed sleeplessness, depression and anxiety, and my feelings of being intimidated increased.
?---Yes.
Right. You had suffered from depression for many years, hadn’t you?---Bouts.
Okay. You had been medicated on Cipramil for many years before you startingworking at Inghams, hadn’t you?---I’m unsure of the times.
I suggest to you that, for a period of – well, from 2002 until 2005, you were medicated on Cipramil?---I’m unsure.
Okay. You accept, don’t you, that you had a period in the early-2000s – from about 2002 – where you suffered from depression?---I’m unsure.
All right. Do you agree that you consulted doctors in, for example, August of 2002 reporting depressive symptoms?--- I can’t remember.
Do you recall telling a doctor in – November 19, 2002 – this is page 570 of Dr Shaikh’s affidavit, if it assists my learned friend, your Honour. Do you recall, Mr – or do you agree, Mr Ford, that, in November of 2002, you told Dr Doug Graham that you had quit work due to stress and depression?---I don’t recall.
Okay. During the early-2000s, there was a period, wasn’t there, where you were out of work?---I’m unsure.
And you suffered from depression?---I’m unsure.
Do you - - -
HER HONOUR: Could I just interrupt for a second. Court Officer, can you escort Mr Ford from the room. Mr Ford, go for a walk?---Yes, your Honour.
(Transcript pp 295-296.)
359 In respect of the latter exchange, it appeared that Mr Ford was distressed by this line of cross-examination, and possibly simply by being in Court at all. However, as Ms Reece for the respondents correctly submitted, this was litigation, and it was Mr Ford’s litigation, in which he had brought very serious claims against the respondents. He clearly did not handle cross-examination well, or being challenged in respect of his version of the evidence. He was not a responsive witness. This invariably affects his credibility, and the reliability of his evidence.
360 Third, there were inconsistencies throughout Mr Ford’s evidence. I have already adverted to a number of such inconsistencies.
361 A perfect recollection of detail and timing of events is not necessary to establish credibility, particularly in light of the passage of time since relevant events allegedly occurred. As McDougall J observed in Ballard v Multiplex [2012] NSWC 426 at [133]:
In many cases the witnesses were being asked about events that occurred up to 15 years before they were cross-examined. In some instances, the witnesses had not been asked to turn their minds to those events until relatively recently. In those circumstances, it is again hardly surprising that the witnesses had less than total or perfect recall. Indeed, if any witness had professed to have total or perfect recall, the court would be entitled to view the evidence of that witness with some degree of suspicion. But incomplete or defective recollection is not synonymous with dishonesty.
362 That Mr Ford suffers mental health issues is also relevant for me to take into account in respect of inconsistencies in his evidence. As Gleeson J pointed out in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32:
19. Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this Court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell. In the present case, the Tribunal, apprehending that the respondent might be disadvantaged by “memory or other difficulties”, of its own motion, and with the respondent's agreement, obtained a psychological assessment. That assessment was for a limited and reasonably specific purpose. The Tribunal was not then obliged to embark upon an open-ended investigation of the respondent’s psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage. It was not suggested in the letter of 30 July that anything the respondent said at the hearing of 26 June, or in his later affidavit, was unreliable. Two things were suggested. The first was that, if the respondent was suffering from PTSD, that would explain the inconsistencies in his earlier information. The Tribunal was willing to accept that, and not hold those inconsistencies against him. The second, which was rejected, and is not now pursued, is that a further assessment might have provided evidence that he had in fact been seriously harmed before he came to Australia.
363 Similarly, the applicant submitted that Mr Ford’s evidence could not be assessed without regard to “his diagnosed medical condition of post-traumatic stress disorder”, and particularly that the features of PTSD were relevant to the assessment of Mr Ford’s presentation during evidence, including any amnesia or partial amnesia and variable recall of traumatic events. However, as I have already observed, I prefer the evidence of Dr Shaikh, whose diagnosis was that Mr Ford did not suffer from PTSD as he claimed.
364 I also note that, even I am wrong and Mr Ford did suffer from PTSD, the evidence before me is not conclusive that this condition would have caused him to suffer from amnesia such as to explain inconsistencies between his evidence and that of other witnesses for the applicant, or even internal inconsistencies in Mr Ford’s evidence. Dr Shaikh gave evidence that persons suffering PTSD can forget certain aspects of the trauma (transcript p 965 ll 32-35). Dr Byth also gave evidence regarding the association of partial amnesia and variable recall in PTSD as follows:
MR REIDY: So that paragraph states:
His other features of PTSD include social withdrawal and emotional numbing, dissociative symptoms and hyper-arousal, as are described in DSM-5.
Could you explain the features of the dissociative symptoms described?---They’re typically symptoms which involve high anxiety, resulting in the ego defence mechanism of disassociation, which is a – it’s a Freudian term referring to some detachment that the individual experiences between their thoughts and the – either the surroundings, environment that they’re in or their – with their normal emotional reaction. So there’s some splitting off or disassociation or detachment feeling that is driven by high anxiety and PTSD.
Okay?---So it can result in amnesia or partial amnesia or variable recall of the traumatic event that has caused the PTSD.
And how does that variable recall manifest itself?---Well, it can present in a variety of ways. With – in the case of PTSD, where the subject might be exposed to a number of traumatic events over a period of time, the – they might remember one event very vividly and forget the second one or find that suppressed or repressed or dissociated, as we say, and they might at a later date recall all – all of the events equally clearly or vividly. There’s some variation in it, but some degree of amnesia in relation to traumatic events is virtually to be expected in all cases of PTSD.
(Transcript p 716 ll 1-23.)
365 As the respondent correctly submitted, both experts gave only general evidence in relation to the effect that post-traumatic stress disorder may have on individuals. Neither expert gave a considered opinion as to whether Mr Ford suffered from such partial amnesia that would explain inconsistencies in his evidence. The possibility that Mr Ford suffered from amnesia remains merely that: a possibility. That any amnesia further explained the inconsistencies in his evidence also is merely a possibility (transcript pp 964-965). In the circumstances, I am unable to find that inconsistencies between Mr Ford’s evidence and other witnesses, or internal inconsistences in Mr Ford’s evidence, are the result of any PTSD-caused amnesia on his part.
366 Further, the evidence of Dr Shaikh does not support any medical reason for possible lapses in memory of Mr Ford, or inconsistencies in Mr Ford’s evidence. In particular, I note:
in Dr Shaikh’s second report dated 10 January 2019, Dr Shaikh noted that, despite Mr Ford’s impaired cognition and observed behaviour, Mr Ford appeared to have good concentration and a good memory of recent and remote events, and a good recall during the assessment; and
in Dr Shaikh’s third report dated 29 January 2019, Dr Shaikh noted that there was evidence of concentration deficits including distractibility, however, despite this, Mr Ford had a good memory of recent and remote events.
367 In circumstances where the reliability of Mr Ford’s evidence is critical to the substantiation of his case, unexplained inconsistencies in his evidence must inevitably go to that reliability. This is reflected, for example, in the manifold amendments to dates in the statement of claim – for example at paras 14 and 15, where originally Mr Ford pleaded events took place in March 2015, then subsequently April 2015, then subsequently August 2015. Similarly, at para 70, Mr Ford originally pleaded relevant events took place in October 2015, but later pleaded they took place in February 2016. And at subpara 82(c), Mr Ford pleaded events took place in June 2016, but later pleaded they took place in November 2015.
368 Fourth, I consider many aspects of Mr Ford’s evidence to be implausible. An example of this is at [423]-[426] of his redacted affidavit sworn 4 June 2018. In those paragraphs, he deposed as follows:
423. I trialled a new medication Seroquel from 24 November 2017, which I am currently on. This medication helps me. I can take it during the day as well as at night. It helps to settle me down when I get worked up and angry thinking about what has been done to me.
424. Not long after commencing on this medication, I started a job with Sikaflex as a Process Worker at Magnesium Drive, Crestmead on about 13 November 2017. Within two hours of me starting the job, I witnessed one worker “dry hump” another worker in the factory. The behaviour was identical to the “dry humping” which had been done to me and which I had seen at Inghams.
425. As soon as I saw this happen I walked straight out of the job. I felt sick to my stomach and horrified that this could be happening again. I contacted Brenton from Labourforce who were the agency who had placed me at Sikaflex and advised them that I had witnessed inappropriate behaviour in the workplace. I told them that I could not return to the workplace as a result.
426. I only worked two hours at Sikaflex. The pay was approximately $24.00 per hour as it was day shift work. I did not get paid for the two hours that I worked.
369 I consider it implausible that Mr Ford would have immediately witnessed further “dry humping” conduct between fellow employees, at his next factory workplace where he was a process worker, within 2 hours of commencing work at that workplace. While this evidence was not directly relevant to the alleged events at Inghams, it does go to his credibility and the reliability of his evidence as a whole.
370 A further example of such implausibility in respect of Mr Ford’s evidence relates to his apparent continued socialising as late as July 2016 with Mr Waldock, and as late as December 2015 or January 2016 with Mr Phillips, while Mr Ford worked at Inghams. According to Mr Ford’s evidence, both Mr Waldock and Mr Phillips had been seriously and consistently sexually harassing him for approximately a year.
371 Mr Ford was unable to plausibly explain this continued socialising. His evidence was that he believed if he befriended them and earned their respect, “kept his head down” and kept working hard, their behaviour would settle down or cease. During cross-examination, Mr Ford gave evidence that he chose to spend time with Mr Waldock and Mr Phillips outside of work because he wanted to drink, but he also gave evidence that he could have drunk elsewhere, but he drunk with Mr Waldock and Mr Phillips because he “thought they were [his] friends” and neither of them had “performed the major sexual acts on me” at that time (transcript p 128 ll 4-11).
372 The applicant submitted that Mr Ford was “roundly criticised [by the respondents] for continuing to work in the feather room despite the continued harassment and was equally criticised for maintaining a relationship with Mr Waldock”. The applicant contended:
The premise of the questioning about remaining in the feather room is that the victim should move on from a position they enjoy and suits them because of the harassment.
Why should he? It presumes that all people respond to harassment by moving away from the source of the harassment. These assumptions are not maintainable as a matter of common sense and ordinary human behaviour. People accommodate to harassment. Mr Rafferty, Mr Bhardwaj, Mr Ly and Mr Ogg continued to work in that environment despite continued harassment. Mr Rafferty adapted by becoming a perpetrator. Mr Ford just put his head down and kept working for as long as he could. Mr Ford would have sensed the influence of Waldock through his connection with the clique of friends. In this simple and naive reasoning, he thought befriending and maintaining a relationship with Waldock could bring an end to the harassment.
373 Notwithstanding the applicant’s submission of Mr Ford’s alleged simplicity and naivety, it is improbable that Mr Ford would reasonably believe, for more than a year, that he could “befriend” Mr Phillips, Mr Rafferty and Mr Waldock to encourage them to “stop behaving this way towards” him, if they actually were behaving as he alleged. It is one thing to “accommodate to harassment”, but it is entirely a different proposition for a person to actively seek the company of alleged harassers by choosing to socialise with them outside of work. A more plausible explanation is that Mr Ford continued socialising with Mr Phillips and Mr Waldock (and potentially Mr Rafferty) because he considered that they were his friends, he liked being with them, they were friendly and helpful towards him (including out of work hours) and there was no conduct of theirs towards him to which he objected.
374 Fifth, in his report dated 11 September 2018 (annexed to reports of both Dr Byth and Dr Shaikh), Dr Thomas Moore noted as follows:
Anger and Mood: Richard frequently reverts back to themes of revenge and retribution. He mentions that if only he had have fought the perpetrators at the time things would be different. He will discuss using violence to resolve the issue as he sees it of them lying on affidavits. He will occasionally reflect that once the court issue is revolved he will be free to enact physical revenge. Whilst all of these are described in the manner of a wish or fantasy, I have no formal forensic skill set to measure, moderate or monitor his violent themes…
375 Neither Dr Byth nor Dr Shaikh demurred from this view.
376 That Mr Ford might feel vengeful against perpetrators of conduct he perceived had occurred to him is perhaps not unreasonable. However, there is evidence before the Court to suggest that there were other circumstances relating to his employment at Inghams which Mr Ford might have felt vengeful about. In particular, one thread of evidence which appears relevant to the allegations of Mr Ford against Mr Rafferty concerns the circumstances in which Mr Ford received a warning on 9 August 2016 for failing to lock out trucks at Murarrie on 8 August 2016.
377 Mr Ford gave the following evidence concerning this incident in his redacted affidavit sworn 4 June 2018:
Around late July 2016, he made an anonymous safety complaint on an unsigned note (that he handed to a work health and safety department employee) about forklift drivers driving and working at the same time as being on their mobile phones.
Mr Waldock and Mr Rafferty told him that when Mr Chan asked them whether forklift drivers were using their mobile phones, they did not say anything to corroborate Mr Ford’s complaint as they used their mobile phones whilst driving the forklifts and did not want to get in trouble.
Approximately one week after he made this complaint, he was given a written warning by Mr Johnson for not locking out the trucks (a safety procedure, that is the forklift driver’s responsibility, designed to stop a truck from hooking up to a trailer and reversing while a forklift driver might be loading or unloading) in a meeting with Mr Johnson, Mr Chan, Mr Collett and Mr Flanders.
He informed those present at the meeting that Mr Rafferty had just done the same thing, and that they could check the cameras to confirm this, but Mr Johnson was dismissive of this and no one else commented on Mr Ford raising this.
He was singled out for this action as, from his observations, at least three employees (including Mr Rafferty and Mr Mole) did not lock out the trucks. He was not aware of any other employees being disciplined for such conduct.
378 Mr Rafferty gave the following evidence in his affidavit sworn 7 July 2018:
56. When a truck makes a delivery we are required to “lock it out”. This means putting a padlock on the trailer so that the truck can’t hook up to it.
57. In or around July 2016 I was working as a relief driver and Richard was working on line two. It was his responsibility to lock the truck out (meaning put the padlock on the trailer).
58. I said to Richard words to the effect of “make sure you put the padlock on as they will be coming out to check it”. I said this to him because I didn't want to get in trouble for it not getting done.
59. He replied with words to the effect that he wasn’t going to. I said to Richard something along the lines of “if it's not locked and I start driving over there, I will get the blame for it”.
60. Shortly after, Saxena came out to the dock (the area where the forklifts are) to check the padlocks had been locked. I asked Saxena to have a word with Richard about his refusal to put the padlock on because I didn’t want to get the blame for this not being done. I thought Saxena might have more sway over Richard than I did as he was a supervisor and Saxena would also get in trouble from health and safety if he didn’t do his job (which included making sure everyone was following the correct safety protocols).
61. My understanding is that Richard was ultimately issued with a warning about not locking out the padlock. It was not my intention to get Richard into trouble, I just wanted the truck locked out so I didn't get into trouble.
62. Richard stopped talking to me after this incident and we stopped being friends. I expect he holds me responsible for his warning given it was me who spoke to Saxena about Richard not putting the padlock on.
379 Mr Rafferty also gave the following evidence during cross-examination:
And you didn’t respond to Richard in the Messenger saying, “What are you talking about? These sexual things in the workplace, I know nothing about it.” You didn’t respond when you got that message, did you?---No.
Because you knew what he was complaining about?---No.
You just didn’t want to talk about it, did you?---I – I thought he was just being vengeful and trying to have a go at me for getting into trouble in the workplace.
There was nothing to be vengeful for, Mr Rafferty, was there?---Well, I thought there was.
HER HONOUR: What was that?---The truck lock.
What’s that?---Sorry. In my affidavit, there’s a – the boss had asked us to lock out all the trucks, and I told Richard – and we were still friends at this time – “Can you make sure you lock out the truck?” because I was on a spare forklift driver, and I had to go over to the other side, where Richard was driving, to drive. And if the trucks aren’t locked out, we get in a lot of trouble for it, because it’s not following health and safety protocol. And Richard said, “No, I’m not doing that”. So when the boss walked out, I said, “Look, I don’t want Richard to get in trouble. He hasn’t been out here for a while. Can you make sure he understands, because he didn’t listen to me”, and I didn’t expect him to get in as much trouble as he did. And once they pulled him aside and then he got taken off the forklift driving, which I didn’t want that to happen to him, and then all this has happened – I would never have done that if I knew this would have happened. I was just trying to do the right thing. I just wanted him to lock the truck outside.
Okay?---I follow safety protocol very carefully, and I didn’t – I didn’t expect him to get in as much trouble as he did and him end up not working there any more because of it.
Thank you.
MR REIDY: And I’m suggesting to you that that’s fanciful because if the vengeance was against you, it doesn’t make sense for him to complain against Waldock, does it? Waldock had nothing to do with it, did he?---As far as I understand it, he originally complained about me.
(Transcript pp 588-589.)
380 Mr Hannett’s evidence was that Mr Ford received a final written warning on 9 August 2016 and was removed from forklift driving duties indefinitely as a result of his failure to lock out the trucks.
381 The next Monday morning, being 15 August 2016, Mr Ford reported pain to his shoulder from his motor vehicle incident in mid-July 2016, and was placed on light duties (i.e. the feather room) until 29 August 2016. Mr Ford returned to hanging duties on 30 August 2016.
382 Mr Collett deposed in his affidavit affirmed 6 July 2018 as follows:
28. In response to paragraph 267 of the Ford Affidavit, I recall that Richard was given a written warning about safety procedures in July 2016. I was present when Saxena Johnson gave Richard this warning. Jason Flanders was not present at this time. It is my belief from my employment at Inghams that it was not common that employees would forget to lock of the trucks and that the requirement to do this was brought up often and included in training which we drivers accept and agree. It is a common practice for drivers to lock out the trucks and I know that each driver has their own set of keys to ensure that they can do this after each truck is brought into the parking bay.
29. I remember that, sometime after this warning, that Richard returned to hanging duties with me. Richard performed hanging duties for one day and, during that day, observed him to struggle. By that, I mean that he was sweating and struggling for breath; at no point during that day did he mentioned pain or his shoulder. I did not observe him to look to be in pain but I observed him to look unhappy.
30. The following day, Richard came to work and performed hanging duties with you for around 10 minutes or so. He said to me something like “I’m going to stir the pot” or “I’m going to start some shit”. I recall this clearly because I found this to be such a strange comment. He then left the line and did not return to hang that day.
31. To the best of my knowledge and recollection, I spoke with Richard that night at the production factory in the locker room and had a conversation to the following effect:
Richard: “I’ve put in a complaint about Raff [Michael Rafferty] sexually harassing me. I want you to support me in this.”
Me: “No. I'm not getting involved. I am not writing a statement for you.”
32. I said that I was not getting involved because, at that time, I was in the middle of a custody dispute and was already feeling stressed; it was taking up all of my energy and efforts outside of work.
33. I also thought that Richard’s accusation against Michael was baseless, as I worked with Richard and Michael often and never witnessed any sexual harassment. I did not think that Michael was capable of sexual harassment. I thought Richard’s complaint was a scam because he only raised this complaint a few weeks after he received a warning and he did not like hanging work, which he had started to do.
34. I have spoken to Richard twice since he has left his employment. Richard called me multiple times soon after he stopped coming into work, and I did not answer. I recall that I received a voicemail from him stating something like “You better answer and speak with me, or you will be getting a summons”. I understood summons to something to do with a court proceeding. Because of this voicemail, I call him back and recall that in that conversation, Richard said to me: “I need you to make a statement about what Raff did to me”. I refused to give Richard a statement because did not have any information or observations about what Richard was talking about - being treated inappropriately by Michael.
383 Mr Rahiwi, in his affidavit affirmed 6 July 2018, also relevantly deposed:
11. During my employment with Inghams, I saw Richard's behaviour and attitude to work change over time. The change happened at around the same time that Glenn Hannett stopped working as the Red Area Supervisor and another worker, Saxena Johnson, was being trained to work as the supervisor. I observed that when Glenn Hannett was the supervisor, Richard did not have his duties rotated between hanging (which includes a small birds line and big birds line), forklift driving and relief shifts - he would work mainly in the feeder room, which was not a very physical job. He would take long smoking. breaks. When Saxena started working as the supervisor, in around June or July 2016, I observed that Richard was less happy. I made this observation because Richard acted in differently, he was more quiet and withdrawn.
384 The applicant submitted that only Mr Rafferty claimed to have reported Mr Ford for failing to lock out the trucks, that there was no evidence Mr Ford knew of Mr Rafferty’s alleged involvement, and that such an explanation did not explain why Mr Ford also made claims of sexual harassment against Mr Waldock and Mr Phillips. Counsel for the applicant pressed Mr Rafferty to concede that Mr Ford had nothing to be vengeful about concerning Mr Rafferty, and that Mr Ford’s complaints always concerned both Mr Rafferty, Mr Waldock and Mr Phillips. However, I am satisfied that:
There is no evidence before the Court that other employees had, as Mr Ford claimed, failed in the past to lock out trucks and not received a written warning for such failure.
Mr Ford and Mr Rafferty were working together at the time that Mr Ford did not lock out the trucks, and although Mr Ford in writing accepted responsibility for the incident, when complaining to Mr Chan it was evident that Mr Ford was annoyed that only he was blamed rather than Mr Rafferty.
Mr Ford was disappointed that Mr Rafferty and Mr Waldock did not support his complaint that workers used their mobile phones whilst driving the forklifts.
Mr Ford was very unhappy about being required to resume hanging duties on or about 30 August 2016, rather than forklift driving and overtime, after he received the lock out warning, and believed that he had been targeted unfairly for his conduct in relation to the lock out. His unhappiness is demonstrated by the comments he put on Facebook on 30 August 2016, which were referable, at least in part, to Mr Johnson.
385 Mr Ford’s Facebook comments following immediately on the heels of his return to hanging duties were also indicative of his anger and wish for retribution against persons he felt had treated him unfavourably.
386 Further, to the extent that Mr Ford’s Facebook comments of 30 August 2016 were directed at Mr Johnson (or more precisely, Mr Johnson’s wife), these comments again were referable to a wish for vengeance against persons who Mr Ford perceived had treated him unfavourably. Mr Ford’s evidence was that his comment “put pain on me, I’ll put pain on you and yours” was “aimed at Inghams’ managers, supervisors and senior employees” (at [366] of Ford affidavit sworn 4 June 2018). Mr Johnson was Mr Ford’s supervisor at the time.
387 I consider the evidence of Mr Ford and his conduct at that time curious, in circumstances where he claimed his comments were referable to the alleged sexual harassment he had endured, whereas his evidence at [355]-[361] suggested rather that, at that time, Inghams’ managers, supervisors and senior employees were endeavouring to assist Mr Ford.
388 In his written complaint of victimisation that Mr Ford handed to Mr Chan on 5 September 2016, Mr Ford claimed that his overtime duties in the feather room were reduced after July 2016, when Mr Johnson became the new supervisor. He also stated in that complaint that he believed Mr Johnson “had it in for [him]” for making the complaint concerning forklift drivers being on their phones, a complaint which Mr Waldock and Mr Rafferty allegedly failed to corroborate because they also used their phones whilst on the forklift. Mr Ford’s written complaint inferred that he received the final written warning for failing to lock out the trucks because his supervisor (Mr Johnson) “had it in for [him]”.
389 An inference which can be drawn is that Mr Ford’s unhappiness towards the end of his time at Inghams was referable to receiving what he perceived to be an undeserved final written warning, losing his forklift driving privileges, his overtime in the feather room being reduced and his return to hanging duties, rather than any conduct of co-workers towards him.
390 I also note the aggressive conduct of Mr Ford towards Mr Waldock’s wife at Murarrie during January 2017. In particular, Mr Ford gave the following evidence in his affidavit sworn 6 August 2018:
28. … I saw Waldock’s wife walking out of the Inghams[’] factory security gate with a sour look on her face. She was walking towards me and looked like she was going to say something to me but she continued to walk past me. As she walked past me I said words to the effect of ‘do you know your husband is poking co-workers up the arse? Is his daughter aware of his behaviour?’ Waldock’s wife ignored me and walked another 10 metres away from me. She proceeded to make a phone call and was staring at me with a disgusted expression on her face. I was very angry at the time. I felt like Waldock’s wife was antagonising me. This was when I made the gesture across my throat to her…
391 This conduct supports an inference that Mr Ford takes a vengeful approach towards persons he perceives as treating him unfavourably (including their partners).
392 Sixth, a further issue relevant to Mr Ford’s credit is that in March 2017 he apparently sought the assistance of Mr Rafferty to support his complaints of sexual harassment when Mr Rafferty was the second respondent and, according to the RFASOC, one of the main perpetrators of the conduct against him. Mr Ford also sought the assistance of Mr Collett, notwithstanding Mr Ford’s allegations of witnessed conduct involving Mr Collett, and approached Mr Waldock (notwithstanding Mr Ford’s complaints involving Mr Waldock) in January 2017 outside the Murarrie premises.
393 Mr Ford’s explanation for why he approached Mr Rafferty was as follows:
So Mr Ford, you’re contacting Michael Rafferty, who, on your evidence, has tried to stick his fingers up your anus?---Yes. Correct.
Who has really sexually assaulted you on a number of occasions?---Yes.
On your evidence, consistently over a long period of time?---Yes. Correct.
What did you want at that time?---His help.
How could he help you?---Because the same thing had happened to him and he chose to engage in it instead of stopping it.
But how could he help you? You accused him of these very serious things; how could he help you?---Because he knows all about it.
(Transcript p 250 ll 22-35.)
394 The prospect of Mr Rafferty being willing to assist Mr Ford in any way in light of the gravity of Mr Ford’s allegations against him is, in the circumstances, entirely unlikely. Perhaps more relevantly, I find it difficult to understand why Mr Ford could have plausibly wanted to engage, at all, with Mr Rafferty if he had experienced the conduct that Mr Ford alleged Mr Rafferty had perpetrated. That Mr Ford should have sought to persuade Mr Rafferty to support his case is, in itself, curious, and suggestive of a deeper grievance Mr Ford may have entertained against Inghams itself.
395 In conclusion, Mr Ford was in the witness box over several days. He clearly was distressed being there. However, I consider that there were serious flaws in Mr Ford’s evidence. I consider that his evidence should be treated with significant caution.
Mr Bhardwaj
396 In relation to the credibility of the evidence of Mr Bhardwaj, the applicant submitted:
He thought and responded quickly and was very difficult to keep up with at times.
Once the time was taken to slow down and focus his attention, he gave clear and cogent evidence.
Sometimes he answered before he came to grips with the concepts in the question.
These minor issues of presentation, personality and, possibly, culture, do not in any way affect that he was an honest witness doing his best to communicate his observations and experiences.
It was apparent he did not have an appreciation of what was involved in giving an affidavit and struggled with some concepts and articulating things clearly, including around the issue of complaints.
There was nothing in the criticism that he had applied for another job at Inghams as he thought he was applying for a job at Hemmant.
397 In relation to the credibility of Mr Bhardwaj, the respondents submitted:
His evidence in relation to having witnessed a range of the alleged conduct occur, with the frequency he claimed, was inconsistent with the objective state of affairs (in particular, the layout of the rooms and the number of people rostered to work in that room at that time) and Mr Ford’s own evidence that no one witnessed the conduct.
He was also unable to indicate the dates when his alleged observations occurred, but as he left in January 2016, they must pre-date this time.
He provided a further affidavit containing new evidence four weeks out from the hearing after being asked a series of questions by the solicitors for the applicant.
He was a combative witness without credit.
He invented evidence of complaints of sexual harassment. He had given repeated affidavit evidence that he had only made complaints about rostering or a pain in his fingers. He then gave oral evidence that he had made an undated handwritten complaint about bullying by Mr Mole to Mr Hannett, and a complaint about Mr Waldock and Mr Phillips to Mr Lucht. He was unable to explain why this fresh evidence had not been given earlier.
He claimed in his affidavit that he had witnessed bullying, sexual harassment and racism during his employment from supervisors, but was unable to identify which supervisors, other than Mr Mole (who was not a supervisor).
Contrary to Mr Ford’s evidence, Mr Bhardwaj claimed that Mr Ford informed him about Mr Rafferty’s and Mr Waldock’s behaviour, but did not clarify what the “behaviour” was.
Mr Bhardwaj gave evidence about Mr Ford making complaints that was inconsistent with Mr Ford’s evidence about the complaints he made.
He claimed to have left Inghams because of the treatment of workers that he regarded as sexual harassment, but told Mr Flanders that he was leaving for less physically demanding work as a courier.
He sought re-employment with Inghams and repeatedly applied for positions with Inghams.
398 Turning now to the evidence of Mr Bhardwaj, I make the following observations.
399 First, the evidence of Mr Bhardwaj in respect of when alleged conduct occurred to Mr Ford or others is unparticularised as to when those incidents occurred. Indeed, the alleged incidents in Agreed Issues 1(h), 1(i), 1(j), 1(k), 1(l), 1(n), 1(o), 1(p) and 1(q) all allegedly occurred after Mr Bhardwaj left Inghams in January 2016.
400 Second, Mr Bhardwaj’s evidence concerning alleged consistent and prolonged “touching and rubbing … done on the groin area” of Mr Ford was not repeated anywhere in the pleadings, or in evidence of Mr Ford. Mr Ford claimed that Mr Waldock had “grabbed” his penis at work in or about August 2016 (Agreed Issue 1(h)). However, I understand that this conduct allegedly occurred on only one occasion and after Mr Bhardwaj had left Inghams (and is a matter to which I will turn later in this judgment). Mr Ogg gave similar evidence to Mr Ford, however not in the same terms as Mr Bhardwaj. Mr Bhardwaj was very specific about this allegation, deposing:
16. The touching and rubbing was done on the groin area on the outside of his work pants. The touching and rubbing would last anywhere from a few seconds up to 15 seconds at a time. This behaviour was also directed towards me and other workers and I saw it happen to Richard.
401 During cross-examination, Mr Bhardwaj said as follows:
This behaviour was also directed towards you and other workers and you saw it happen to Richard?---Yes.
Are you saying these men would approach you and rub you on your groin area for a few seconds, up to 15 seconds at a time?---Yes. Yes.
Constantly?---Yes.
And you’re saying all three of them would do it?---Yes.
And what sort of time period are we talking about?---We normally finish our hanging for line 1 around 7.30 or between 8. And we finish our shift at, like, 10 past 9.
I mean, more like was it happening in December 2015?---No, I’m not sure about the dates.
Well, do you know when it started?---It always drew once we go and help in the – clean the feathered one for finishing.
I don’t mean in the shift. I mean at a point in time. I mean historically. So you started working at Inghams in 2012?---Yes.
When did it start happening?---When I move in the red area section.
And when was that?---After I think – when I start Inghams in 2012, after maybe seven or eight months I was working in a white area – section – as a boning. Then I moved to red area section.
So you were doing boning and then you worked in the red area?---Yes.
(Transcript pp 188 ll 13-39.)
402 No other witness gave evidence either supporting or refuting such allegation, and Mr Rafferty specifically denied that he had engaged in such conduct (transcript p 579 ll 29-30).
403 Third, although originally Mr Ford’s evidence was that he had not spoken with any co-workers about the alleged conduct perpetrated against him by the individual respondents, Mr Ford’s oral evidence during the hearing was that he had so discussed it with a few “close friends”, although Mr Ford was “unsure” with whom he had discussed it (transcript p 399 ll 10-15). This was consistent with the evidence of Mr Bhardwaj. However, I consider it curious that Mr Ford would have given such evidence in circumstances where his earlier evidence, closer to the time of relevant events, was that “I couldn’t talk to anyone about what was happening”.
404 Mr Bhardwaj gave evidence that he was friends with Mr Ford and would talk with him on breaks and sometimes outside of work. Yet, such evidence as is before the Court suggests that Mr Ford’s “close friends” at work were Mr Waldock and Mr Phillips (with whom he socialised outside of work), not Mr Bhardwaj. Insofar as I can ascertain, Mr Bhardwaj was not mentioned at all in Mr Ford’s first affidavit, and Mr Ford only mentioned Mr Bhardwaj in his affidavit sworn 6 August 2018 at para 18 in responding to evidence of Mr Rafferty.
405 Fourth, the respondents sought to make an issue of evidence of Mr Bhardwaj concerning certain complaints he made whilst at Inghams. In particular, I note:
In his affidavit sworn 19 May 2018 (First Bhardwaj Affidavit), Mr Bhardwaj gave evidence that he had made two written complaints at Inghams – one complaint concerning rostering (to Mr Chan and Mr Hannett) and one complaint concerning pain in his fingers (to Mr Johnson and a branch manager named Yan). He claimed that nothing happened at Inghams concerning these complaints.
At [13] of the same affidavit Mr Bhardwaj referred to “my complaints about Mole”.
At [8] of the same affidavit, Mr Bhardwaj referred to two written complaints to Mr Hannett and Mr Lucht, but in respect of which allegedly nothing was done.
In oral evidence, Mr Bhardwaj referred to a hand-written complaint (which he gave to Mr Hannett) concerning alleged abusive language, bullying and harassment of him by Mr Mole, a separate written complaint concerning Mr Waldock and Mr Rafferty (which he gave to Mr Lucht), and a complaint to Mr Chan about having a sore finger while hanging birds (transcript p 172 ll 27-29).
406 Mr Hannett did not recall the complaint allegedly made by Mr Bhardwaj, and Mr Lucht gave no evidence concerning it. Mr Story deposed that Inghams had no record of any written complaints by Mr Bhardwaj concerning hanging duties.
407 Mr Bhardwaj’s evidence concerning his alleged complaints of sexual harassment about Mr Mole, Mr Rafferty, Mr Waldock and Mr Phillips are curiously devoid of detail, including relevant dates. Further, his evidence is inconsistent – initially Mr Bhardwaj referred to his complaints regarding Mr Mole, “Wade Phillips and Brenden” (transcript p 172 l 27), but later in the hearing referred to his complaints regarding Mr Mole, “Michael and Brenden” (transcript p 182 l 23). I do not consider it likely that Mr Bhardwaj made a slip of the tongue – he specifically identified Mr Phillips as “Wade Phillips”, and later repeated Mr Rafferty’s name (at transcript p 182 l 46). I consider Mr Bhardwaj’s evidence concerning his alleged written complaints of sexual harassment to be implausible in the absence of detail and the inconsistency of his identification of alleged perpetrators. However, I consider it possible Mr Bhardwaj made a complaint concerning Mr Mole’s alleged use of abusive language as his evidence in this regard was consistent.
408 Fifth, there is an issue going to Mr Bhardwaj’s credit concerning the circumstances of his departure from Inghams, and his views of working there. During cross-examination, Mr Bhardwaj denied that he left Inghams because the work was too physical or that he told Mr Flanders he was leaving to set up a courier business (transcript p 184 ll 33-45).
409 However, in his affidavit sworn 6 June 2018, Mr Flanders gave evidence that Mr Bhardwaj explained his resignation from Inghams by reference to commencing his own business.
410 I consider it likely that the primary reason Mr Bhardwaj left Inghams was to set up his own business as a courier. I also consider it likely that Mr Bhardwaj did not like the work of a process worker at Inghams, notwithstanding that he worked there for several years, and that he did not like co-workers there (in particular, Mr Mole). I note his claim of multiple complaints about the type of work he was getting at Inghams, including hanging work – they reflected Mr Bhardwaj’s view of the work he was doing at Inghams. I note that Mr Bhardwaj gave evidence that he did not like the “culture” at the Murarrie premises of Inghams. However, this does not equate to the existence of a culture endorsing sexual harassment of employees. Notwithstanding Mr Bhardwaj’s evidence at [3] of the First Bhardwaj Affidavit, that he left Inghams “because of the treatment by other workers that I regarded as sexual harassment and because nothing was done about complaints that I made”, I consider it more likely that Mr Bhardwaj was actually primarily concerned about his dislike of the work he was doing at Inghams, the working and rostering complaints he had apparently made (and which he considered had not been properly addressed), and his dislike of co-workers.
411 Sixth, it is not controversial that, on 22 January 2019, Mr Bhardwaj reapplied to work at Inghams. Mr Bhardwaj’s evidence was that he had applied to work as a forklift driver/coldroom operator at the Hemmant premises of Inghams (transcript pp 185-186).
412 The respondents adduced evidence that, in fact, Mr Bhardwaj had applied on that date to work at the Murarrie premises where he had previously worked. Mr Bhardwaj denied this. The respondents submitted that this inconsistency went to Mr Bhardwaj’s credit.
413 In short – I consider there is nothing in respect of this issue which goes to Mr Bhardwaj’s credit. I accept the evidence of the respondents that the job for which Mr Bhardwaj applied was actually located at the Murarrie premises. However, I also accept Mr Bhardwaj’s evidence that he had applied through the “Seek” website, and had understood that the position was located at Hemmant. I consider Mr Bhardwaj’s evidence to this effect to be perfectly plausible, and that Mr Bhardwaj had made an incorrect assumption as to where the position was located.
414 Seventh, in the witness box Mr Bhardwaj was respectful and articulate. Although he was clearly embarrassed discussing issues the subject of this litigation, he was not reticent in advancing his opinion, and he did so firmly whilst giving evidence. It was apparent to me that Mr Bhardwaj was self-confident and assertive in his manner. This is consistent with him setting up his own business as a courier after he left Inghams. This was also consistent with the applicant’s submissions that Mr Bhardwaj was “an insistent and persistent person”, “vociferous” and “is not a man who takes a backward step”. To that extent, I consider it unlikely that Mr Bhardwaj would, at all, tolerate the sexual harassment he alleged occurred to him.
415 Insofar as I am aware, Mr Ford gave no evidence concerning Mr Bhardwaj’s character. However, other witnesses did, and I consider their evidence relevant as going towards credit. In particular, fellow employees at Inghams appeared to view Mr Bhardwaj as disrespectful and aggressive towards them. For example:
Mr Rafferty thought that Mr Bhardwaj was a “liar”, noting “he would lie all the time about things” (transcript p 573 ll 28-30) and gave evidence that he was unpredictable. Mr Rafferty stated:
… if he had stolen something out of my locker and I confronted him because I seen him do it, he would get aggressive and start yelling at me and telling me to get effed and he would have the item of my belongings on his person. And he was aggressive and he would come up to you in the feather and just shove you under the – like just shove you on the wall. And then unpredictable, he would go from being like that to being friendly pretending to dry hump you. And that was what I meant by “unpredictable”. And he would come up behind you and grab your bum and smile at you and just after he had done something like shoved you and told you to get effed for no reason.
(Transcript p 576 ll 23-31.)
In his affidavit affirmed 5 July 2018, Mr Muhic deposed to having witnessed people at work at Inghams – including Mr Bhardwaj – treat others with disrespect in the Red Area. Mr Muhic elaborated that “disrespect” meant swearing, putting people down and making racist comments to others. Mr Muhic gave evidence that he had reported a racist comment directed toward him, where Mr Bhardwaj had called him a “white dog” (transcript p 800 ll 9-22).
Mr Hannett gave evidence that he did not trust Mr Bhardwaj and that he did not have a friendly relationship with him as he had, in fact, terminated Mr Bharwaj’s employment at one point (although Mr Bhardwaj was apparently reinstated following intervention by the union). Mr Hannett also deposed that he thought Mr Bhardwaj “did lie a bit” (transcript p 919 l 17).
416 I also note that Mr Bhardwaj appeared to have a particularly toxic relationship with Mr Mole, who in the evidence of Mr Bhardwaj used aggressive, racist and abusive language towards him and other workers. Mr Bhardwaj insisted that he had made a complaint to Mr Hannett concerning Mr Mole’s language. Whilst he could not remember the date of that complaint, his evidence in this regard was consistent and, notwithstanding his apparent dislike of Mr Mole, plausible.
417 The entirety of Mr Bhardwaj’s evidence relating to alleged sexual harassment of himself and Mr Ford by Mr Waldock, Mr Rafferty and/or Mr Phillips, and the daily complaints Mr Ford allegedly made to Mr Bhardwaj concerning that sexual harassment, does not sit well with Mr Bhardwaj’s only consistent evidence concerning a complaint to Mr Hannett about Mr Mole, and that Mr Ford had also complained to Mr Hannett. I note that Mr Ford himself gave evidence that he had complained to Mr Hannett once concerning Mr Mole’s abusive language in the workplace.
418 I also note that, during the hearing, Mr Bhardwaj alleged that he had been bullied by Mr Hannett and supervisors and sexually harassed by Mr Mole. I particularly note the following exchange during cross-examination:
George Mole was never your supervisor, was he?---No.
No. So at paragraph 7 of your 19 May affidavit when you said you received this type of treatment from your supervisors, particularly George Mole; that’s incorrect, isn’t it?---It’s true. Whatever is written here is true.
So he was your supervisor?---No, he was not my supervisor.
Okay. He was just another co-worker, wasn’t he?---Yes.
All right?---That’s including supervisor.
Sorry?---George Mole plus supervisors.
Okay. So are you saying some of your supervisors bullied you, sexually harassed you and were racist towards you?---Yes, bullying me. Yes.
So which of your supervisors?---Glenn.
Okay. Did he sexually harass you?---No, he bullied me.
So when you say:
During my time at Inghams I witnessed bullying, sexual harassment and racism.
?---Yes.
And you go on to say:
I received this type of treatment for my entire time at Inghams from my supervisors.
?---From my supervisors and in particular from George Mole, yes.
Right. So which supervisors sexually harassed you?---Supervisors harassing – harassing me, not in a sexual way, no, but just bullying me.
Okay. So when you say in that paragraph that you received this type of treatment for your entire time at Inghams from your supervisors - - -?---Supervisor, particular from George Mole too. There was a word “too” then there was a ..... as well.
There was a, what, sorry?---There was George Mole name as well in that one.
I understand what you’re saying George Mole did?---Yes.
What I’m asking you is, when you say that you received that kind of treatment, bullying, sexual harassment and racism and you say you received it for your entire time at Inghams from your supervisors; that’s not true, is it?---No, not from my supervisor.
No?---Only bullyings.
Okay?---Yes.
HER HONOUR: So could I ask you to break it down a bit, please, Mr Bhardwaj. So paragraph 7 you said:
I witnessed bullying, sexual harassment and racism.
?---Yes.
Yes. You said:
I received this type of treatment for my entire time at Inghams from my supervisors, particularly from George Mole.
So just breaking it down. Bullying from Glenn?---Bullying from my – Glenn and racism.
Yes. Racism from - - -?---Glenn Hannett. And sexually harassed by George Mole.
Okay?---Bullying.
So just so I understand, paragraph 7 mixes up the conduct and the people?---Yes.
Yes.
Right. Thank you.
(Transcript pp 186-187.)
419 There is a disconnect between all of this evidence of Mr Bhardwaj. He gave evidence that Mr Waldock, Mr Rafferty and/or Mr Phillips inappropriately touched Mr Ford, on an almost daily basis. Mr Bhardwaj gave evidence that he himself was inappropriately touched by them. However, there appeared to be no formal complaint by him about any conduct of this nature, which I consider would be inconsistent with his personality, his alleged comments to Mr Ford to “just complain” and his likely absolute intolerance of such conduct if it were directed towards him. At the same time, such evidence as Mr Bhardwaj can detail related to his grievances with the Inghams workplace, “supervisors” (particularly Mr Hannett), and specifically Mr Mole, in respect of alleged bullying of him by Mr Hannett and Mr Mole.
420 This disconnect can, however, be rationalised by concluding as follows:
Mr Bhardwaj appeared to strongly dislike Mr Mole;
he did not like his supervisors, in particular Mr Hannett whom he alleged bullied him and who had, at one point, fired him;
he perceived that nothing was done by Inghams about his (alleged) complaints concerning Mr Mole and rostering; and
he did not get on particularly well with co-workers (apparently including Mr Rafferty and Mr Muhic).
421 I consider that if Mr Bhardwaj had been repeatedly sexually harassed in the manner he claimed by Mr Waldock, Mr Rafferty and/or Mr Phillips, he would have elevated it immediately to Inghams’ management by way of formal complaint, and/or responded firmly (and potentially aggressively) to such conduct.
422 Mr Bhardwaj’s view of the Inghams’ workplace was also, in my view, affected by the disciplinary written warning he received from Mr Chan. Mr Bhardwaj sought to play down this event, denying he was disciplined, and on the basis that “it was like I was just wearing headphone, like, on the corridor. I was not actually in the hanging room” (transcript p 191 ll 31-35). I consider it likely that Mr Bhardwaj was aggrieved by the fact that he had been subject to a written warning in respect of a matter which he clearly considered trivial, while (in his view) Inghams did nothing about the complaints he had allegedly made concerning Mr Mole and rostering.
423 Ultimately, I consider that Mr Bhardwaj’s evidence relating to alleged sexual harassment of himself and others (including Mr Ford) in the workplace was an embellishment by him, in light of the poor relationships he had with co-workers and his perception that Inghams’ management was not only unsupportive of him and his concerns, but positively bullying of him.
424 Overall I give little weight to Mr Bhardwaj’s evidence concerning alleged conduct by Mr Waldock, Mr Rafferty and Mr Phillips, and allegations of sexual harassment against Mr Mole, because I do not consider his evidence in those respects to be reliable.
425 The position in relation to Mr Bhardwaj’s evidence concerning alleged abusive language by Mr Mole is different. I will return to this issue when I consider Agreed Issue 1(r).
Mr Ogg
426 Mr Ogg worked as a process worker at Inghams between 2008 and 12 August 2018. He gave evidence in a number of affidavits and orally at the hearing.
427 Before assessing the credibility of Mr Ogg, I note that it is not controversial that in or around 2014 Mr Ogg was involved in an incident where another employee, Mr Jordan Hill, poked him in the buttocks with a steel rod. The incident was summarised by Mr Ogg in his second affidavit sworn 3 August 2018 (Second Ogg Affidavit) at [3].
428 In relation to the credibility of Mr Ogg, the applicant submitted, in summary:
He was not a sophisticated man.
He gave his evidence slowly and conservatively in an understated manner.
He gave straightforward, honest answers and did not ever attempt to embellish his evidence.
He was easily confused and had particular difficulty with dates and time frames unless questions were put to him clearly and he was slowly walked through.
He had explained why he felt comfortable naming the respondents in his first affidavit and why he later felt capable of naming others.
He found it difficult to explain himself clearly in the Court environment.
429 In relation to the credibility of Mr Ogg, the respondents submitted:
He was an inherently unreliable witness, clearly anxious not to make a mistake.
His evidence in cross-examination did not clarify or further his already embellished affidavit, or resolve numerous prior inconsistent statements. He lacked credit.
His evidence of his observations or other knowledge of Mr Ford’s allegations had changed significantly over time.
His evidence in relation to having witnessed a range of the alleged conduct, with the frequency he claimed, was inconsistent with the objective state of affairs (in particular, the layout of the rooms and the number of people rostered to work in that room at that time).
In his first affidavit, he did not give any evidence of observing conduct involving Mr Ford, but gave evidence that Mr Ford had told him a number of times about certain conduct of Mr Rafferty, Mr Waldock and Mr Phillips.
In his third affidavit, he expanded on the nature of the conduct he had allegedly observed or was subjected to, but did not particularise when or where the conduct took place.
He also deposed that he found the alleged conduct “uncomfortable” and did not like it, which contradicted his statement in September 2016 in response to the workplace investigation, when he referred to “joking around”, “fun and games”, that he himself had “joked around”, and that it was “all for a laugh”.
He did not attempt to disavow the statement he made in the course of the workplace investigation until his fourth affidavit.
His allegations were inconsistent with his prior statements, were fabricated and should not be given any weight.
In his fourth affidavit, and for the first time, he corroborated Mr Ford’s allegations against Mr Phillips in relation to Mr Varghese, Mr Lucht and Mr Hannett, which must be the result of collusion between himself and Mr Ford, and the contamination of his evidence.
He claimed Mr Rafferty, Mr Waldock and Mr Phillips engaged in behaviours that mirrored the allegations of the applicant, in particular, that he was poked with a squeegee handle, a new allegation identical to that alleged by Mr Ford.
He provided his fourth affidavit after conferencing, where he was asked a series of questions by the solicitors for Mr Ford and had his recall pressed.
430 Mr Ogg’s evidence in respect of alleged events at Inghams is wide-ranging, across 10 years, numerous co-workers, and a range of conduct.
431 First, in relation to the respondents’ contention that Mr Ogg’s later affidavit evidence was a result of collusion, I note the following exchange between Counsel for the respondents and Mr Ogg:
So have you spoken with Richard about this matter since August of 2018?---Yes. I have talked to Richard.
So you’ve spoken to him since you gave your first two affidavits in this matter, one of which was sworn on 18 May and one of which was sworn on 3 August 2018?---Yes.
Do you remember what you talked about?---We talked about things that happened to him at Inghams’, about this going to court maybe and – yes.
So did he tell you some things about what had happened to him at Inghams’?---Yes.
Things that he had seen?---Yes; we just talked about what had happened and how it wasn’t good and - - -
Where were you when you were having that discussion?---My place.
So he came over to your house to discuss – and you discussed this case when he was there?---Yes.
Do you remember when that was?---Several months ago.
Did Richard tell you about – did he tell you something about seeing Bijo Varghese and Wade Phillips in the locker room?---Yes; he has told me about that.
Okay. And did he tell you about that after he – after you finished working at Inghams’?---Yes.
Okay. Take you to paragraph 8 of your fourth affidavit, Mr Ogg, which is the one dated 13 June 2019?---Yes. I have that one.
All right. Do you see you’ve written this or you’ve stated the following:
I have seen Wade pull his pants down and show his genitals. I’ve seen Wade do this in the locker room on one occasion, when he put his genitals close to the face of another employee, Bijo.
?---What page is that? Sorry.
So it’s page 3 of your 14 June – sorry – 13 June affidavit?---Okay.
So you see that affidavit?---Yes; yes.
Page 3, paragraph 8. It’s just the second paragraph from the top?---Yes. I see it.
I will let you read it again?---Okay. Yes. I’ve read that.
Mr Ogg, is that something that you actually remembered, or is it something that, Richard told you, he had seen?---No, I do remember that.
Well, I put it to you - - -?---Yes.
That the first time you mentioned that incident is in your 13 June affidavit that I’ve just taken you to?---Okay.
Do you accept you hadn’t mentioned it previously in the affidavits you’ve sworn in this matter?---Yes. I’m not sure why I never mentioned it earlier, but there was a lot of thing I needed to remember; it happened a long time ago, and that’s all I can say really.
Well, Mr Ogg, I suggest to you the reason you have added that particular part of your story is because Richard told you it was something he had seen happen?---I’ve actually seen it, and I actually seen Wade showering with someone else as well.
You saw Wade showering with someone else?---And several others saw it, but if they will say anything – that’s another thing.
Are you suggesting that there was something wrong with taking a shower? What evidence are you giving now, Mr Ogg?---I’m just saying that Wade has pull his pants down and showed his genitals before.
Well, there’s a very, very specific allegation there at paragraph 8 - - -?---Yes.
Which is not just that he pulled his pants down but that he put his genitals close to the face of another employee, Bijo Varghese?---Yes; that’s correct.
Do you know Bijo Varghese?---Yes. I know him. I worked with him.
Yes. And you say that you saw this happen – you saw this actual conduct happen to your co-worker?---Yes. I saw it happen to him, and I’m positive; it happened to my supervisors as well.
Well, who are you saying - - -?---Kelvin and Glen Hannett.
All right?---Yes.
And nothing happened?---Well, everyone just thought it was a joke and a laugh – as well as the supervisors.
Mr Ogg, you didn’t mention that conduct of Wade Phillips until June of this year?---Yes.
Do you agree that you had opportunities on the following dates to give a version of what you had seen happen at Inghams’? And I will read them to you; 22 September 2016: that’s when you gave your written statement to Inghams’?---Okay; yes.
29 November 2016: that’s when you gave your signed statement to the investigator?---Yes.
I took you to it before?---Yes.
All right. 18 May 2018; your first affidavit?---Yes.
3 August 2018?---Yes.
Your second affidavit. 16 October 2018 – which is your third affidavit. Do you agree with that?---Yes.
And, Mr Ogg, each time you gave these statements or affidavits, did you understand that it was important, that you tell the truth?---Yes; of course.
So when you gave those affidavits, were you leaving things out?---I’m not sure if I was leaving things out. It’s just, because it happened such a long time ago, it’s not easy, to remember everything.
Well, precisely?---It’s very hard.
Do you agree that in September of 2016 you were a whole lot closer in time to anything that had happened in Inghams’ than you were in June of this year?---But when you think back, like you try and remember something in 2016, it’s not easy.
Well, on 22 September 2016 – do you agree that you were in 2016, when you gave that statement; you were giving it at that time, the written one?---Do I agree – sorry – that - - -
Do you agree that the statement that you gave on 22 September 2016 - - -?---Was that the one to Mark Chan?
Yes; that was given in 2016. Wasn’t it?---Yes.
And then the statement given to the investigator was the 29th of November 2016?---Yes. I agree – the letter I wrote to Mark Chan: that’s all true. The one with the investigator: I can’t remember a lot of that one. That’s just the truth.
Well, when you say the one to Mark Chan was the truth – I will just take you to that?---Yes.
You say in the – at the bottom of that statement – and that’s – just so you know, Mr Ogg, that’s – if you go to page 6 of your first affidavit, the 15th – I’m sorry – 18 May affidavit, you go to page 6 and then turn over the page - - -?---Yes; is that the attachment 6, that one?
Yes; that’s right?---Okay.
Do you agree – I took you to it before, the second paragraph there in your statement; you say:
I haven’t seen much of it going on lately.
?---Yes.
What do you – what did you mean by that?---Well, I had seen stuff over the time I had worked there, but I think, when I got asked to write this statement – I hadn’t seen a lot of sexual harassment going on at that time I was working, sort of understand.
I suggest to you that it hadn’t been really going on for a long time at that stage?---Well, it was – there was some times it was happening, but it wasn’t happening a lot as what it was back then.
All right. Well, what does “a lot” mean?---Well, back then they had a – those guys, several guys had a thing called gay Friday. I don’t know if that’s – you’ve heard of that, but – yes, but it happened every Friday, but sometimes it would happen every day. So - - -
And by the time you wrote this statement in September of 2016 – I suggest to you that gay Fridays was a thing of the past?---Pretty much.
The conduct associated with it, the sexual conduct of – that you’ve described in your affidavit material had not happened at Inghams’ for a number of years?---It has happened, but I haven’t really seen it.
(Transcript p 444-447.)
432 Having regard to Mr Ogg’s evidence, it is clear that Mr Ogg’s version of events at Inghams changed not only materially, but dramatically, between the dates he swore his first affidavit on 18 May 2018 (First Ogg Affidavit), his third affidavit on 16 October 2018 (Third Ogg Affidavit) and his fourth affidavit on 13 June 2019 (Fourth Ogg Affidavit). I note that in the Second Ogg Affidavit, Mr Ogg responded to the evidence of other witnesses and did not expand on his earlier evidence other than in relation to the incident involving Mr Hill.
433 However, I again note that Mr Ogg left Inghams’ employment on 12 August 2018, and the Third and Fourth Ogg Affidavits post-dated his resignation from Inghams. While Mr Ogg’s possible discomfiture in “dobbing” on employees in earlier affidavits while he worked at Inghams could go some way towards explaining his reticence in being completely comprehensive and forthright in the First Ogg Affidavit, it would not satisfactorily explain the large volume of new evidence in the Third and Fourth Ogg Affidavits, and the stark inconsistencies between that new evidence and his prior evidence and statements. In this respect I note, for example, as follows.
434 In the First Ogg Affidavit, Mr Ogg gave evidence of incidents involving Mr Ford, of which Mr Ford had informed him, including the following:
12. Richard told me a number of times that he was having problems at work and told me that he had been sexually harassed by Waldock, Rafferty and Phillips. Richard told me that he did not find their behaviour to be funny.
13. He described the sexual harassment as including cupping his genitals and touching him on the backside.
…
17. In the 29 November 2016 statement, I say at paragraph 4 that Richard indicated to me in or about September 2016 that he was having problems at work, alleging he was being sexually assaulted. I am not sure of the time. Richard told me about this when he was still working at Inghams. I know this because Richard spoke to me about their behaviour on many occasions including on our work breaks, after work and when I saw him outside of work.
435 He also, at [5] of that affidavit, described general “sexual behaviour” in which he had seen employees at Inghams engage, including:
(a) slapping each other on the buttocks;
(b) touching each other in the genital area;
(c) “dry humping” each other against the washing sink; and
(d) fingering each other in the anus, that is, stick a finger into the anus of another employee.
436 At [7] he deposed that “[s]ome of this behaviour has happened to me.”
437 Mr Ogg was not more specific than this in respect of his own involvement in this conduct.
438 However, Mr Ogg’s evidence during cross-examination was that Mr Ford complained to him for the first time in September 2016 and then afterwards when Mr Ogg left Inghams, rather than on the many occasions he deposed to in the First Ogg Affidavit.
439 Further, by the Third and Fourth Ogg Affidavits, Mr Ogg was considerably more explicit and specific in his new evidence of different types of conduct. In the Third Ogg Affidavit, for example, Mr Ogg gave new evidence of:
“licking” behaviour as follows:
11. On one occasion, Waldock licked his finger then placed it on the top of my shirt where my nipple was, and at the same time he acted in an effeminate manner.
Mr Phillips repeatedly pulling his pants down and exposing his genitals:
Phillips pulled his pants down in the locker room exposing his testicles for everyone to see. On at least three occasions, I recall Phillips putting his testicles next to Mr Lucht’s face while he was bent over in the locker room. Mr Lucht was unaware of what Phillips was doing and when he turned around, Mr Phillips’ testicles came into contact with Mr Lucht’s face. This happened in front of other workers. I saw Phillips do the same thing to Mr Hannett.
440 Further, it was not until the Third Ogg Affidavit that Mr Ogg specified Mr Rafferty, Mr Waldock and/or Mr Phillips as engaging in conduct towards him, including the alleged frequency of such conduct, namely (at [10]): dry humping (approximately twice per week), anus poking with fingers (about twice per month), buttock slapping (at least three times per week) and genital touching (about once per week).
441 The frequency of this alleged conduct and the alleged perpetrator(s) as stated in the Third Ogg Affidavit, however changed by the time of the Fourth Ogg Affidavit. In particular, I note:
In the Third Ogg Affidavit, Mr Ogg deposed to being poked in the anus with a finger by Mr Waldock and Mr Rafferty about twice a month. In the Fourth Ogg Affidavit, Mr Ogg deposed to being poked “in my bottom” with a finger by Mr Waldock, on one occasion three to four years before.
In the Third Ogg Affidavit, Mr Ogg deposed to his testicles and genital area being cupped by Mr Waldock and Mr Rafferty, once per week. However, in the Fourth Ogg Affidavit, Mr Ogg claimed it was only done by Mr Rafferty at least five times over the period of his employment from 2008 to 2018.
442 Further, it was not until the Fourth Ogg Affidavit that Mr Ogg gave evidence:
That he had actually seen alleged conduct happen to Mr Ford. I note, in particular, [15] and [21].
That he had seen each of Mr Rafferty and Mr Waldock, in the feather room, pull their own pants down with their underwear on (at [16]).
Of “an occasion when I was working in the hanging room and I bent over to pick up a dead bird. Michael poked me in the butt with a squeegee handle” (at [26]).
Of having seen Mr Phillips reveal his genitals in front of Mr Varghese’s face (at [8]).
That “some of the people involved” in the relevant conduct were in a supervisory role such as leading hands, and he was afraid they would “get back at him” if he made a complaint (at [2]).
443 Mr Ogg’s explanation in the Fourth Ogg Affidavit for some of this additional, new evidence was that he had “been asked a series of questions and [had his] recall pressed” about the conduct he had allegedly witnessed at Inghams or previously described in the statement he gave during the workplace investigation.
444 In my view, having regard to all of Mr Ogg’s evidence, I consider he was not a witness of credit, and no weight should be attributed to his evidence in these proceedings. This is a serious finding of credit, however I am satisfied that it is the correct finding for the following reasons.
445 It is apparent from the cross-examination of Mr Ogg that Mr Ford and Mr Ogg met and discussed Mr Ford’s alleged grievances several months before the hearing in August 2019. Mr Ogg deposed that he and Mr Ford were friends and saw each other out of work (at [11] of the First Ogg Affidavit). A very real inference which may be drawn from Mr Ogg’s later affidavits is that not only did he discuss Mr Ford’s allegations prior to giving the Fourth Ogg Affidavit, but that Mr Ford’s allegations significantly contaminated Mr Ogg’s evidence in Mr Ogg’s last affidavit.
446 Two stark examples of such apparent contamination of Mr Ogg’s evidence in the Fourth Ogg Affidavit related to alleged poking of Mr Ogg with a squeegee handle, and Mr Ogg’s evidence concerning Mr Varghese and Mr Phillips:
Mr Ogg’s evidence concerning an alleged incident (at an unidentified date) where Mr Rafferty “poked [Mr Ogg] in the butt with a squeegee handle” in the hanging room, is almost identical to the allegation of Mr Ford in Agreed Issue 1(g) (para 31 of the RFASOC), and evidence of Mr Ford in his redacted 4 June 2018 affidavit at [217], that Mr Rafferty had poked Mr Ford in the anus with a squeegee handle whilst working in the feather room. This is a somewhat specific allegation. The coincidence is, in my view, remarkable, and implausible.
Similarly, Mr Ogg’s evidence that he had seen Mr Phillips reveal his genitals in front of Mr Varghese’s face is rendered implausible by evidence he gave during cross-examination that Mr Ford had told him about this incident after Mr Ogg had left Inghams (and therefore before the Fourth Ogg Affidavit) (transcript p 444 ll 15-29).
447 The new evidence was also apparently developed in association with discussions with unnamed persons who “pressed his recall” about the behaviour he had witnessed at Inghams, and after he had been asked a series of questions by them. I consider it reasonable to assume that the persons who asked him those questions and pressed his recall were the lawyers for Mr Ford.
448 In summary – I do not accept any of this evidence of Mr Ogg as credible.
449 Second, Mr Ogg gave very detailed evidence in the Third and Fourth Ogg Affidavits concerning alleged conduct of, inter alia, Mr Rafferty, Mr Waldock and Mr Phillips towards himself as well as Mr Ford. He stated in both his affidavit evidence and during cross-examination that he had not earlier wanted to “name names” whilst he worked at Inghams (when he made his statement to the workplace investigation of Mr Ford’s complaints, and at the time that he made the First and Second Ogg Affidavits) because he was concerned about being labelled a “dobber” or a “narc”. In particular, Mr Ogg gave evidence that he had been called a “narc” for complaining about the Jordan Hill incident, and in relation to another formal complaint he had made in respect of being pushed over at Inghams (transcript p 450 ll 25-45, Fourth Ogg Affidavit, at [3]).
450 I consider it possible that Mr Ogg would have felt uncomfortable naming perpetrators of alleged conduct involving himself whilst he was still working at Inghams. I note that his naming of Mr Rafferty, Mr Waldock and Mr Phillips in his first affidavit was, in essence, quoting Mr Ford. However:
At the time of swearing his first affidavit, Mr Ogg was working at Inghams. If Mr Ogg was concerned about being labelled a “dobber” or a “narc” at that time, presumably his first affidavit supportive of Mr Ford, and quoting Mr Ford by naming Mr Rafferty, Mr Waldock and Mr Phillips, would have had the outcome of labelling him as a “dobber” or a “narc” at Inghams.
Mr Ogg’s explanation that he was prepared to “name names” whilst speaking with Mr Ford’s lawyers, because he felt more comfortable talking to the lawyers outside of work than to people at work (transcript p 452 ll 20-25) is plausible. However, it is again inconsistent with his alleged fear of being labelled a “dobber” or a “narc” in the workplace. It is reasonable to conclude that by speaking with Mr Ford’s lawyers, Mr Ogg would have been informed that by giving evidence for use in Mr Ford’s Federal Court case, his involvement could become public, he could be called as a witness in the case, and his evidence could become known at Inghams.
Even if Mr Ogg was reluctant to give evidence about conduct which had occurred to himself, there is no reason for him to have withheld evidence of egregious behaviour he had seen enacted towards Mr Ford. I find it difficult to accept that if Mr Ogg had witnessed Mr Ford being sexually harassed as Mr Ogg subsequently deposed in the Fourth Ogg Affidavit, he would have been unwilling to give evidence of this in the First Ogg Affidavit. This is particularly so given that Mr Ogg himself clearly, in the past, refused to tolerate conduct towards himself which he found offensive, including the Jordan Hill incident and an incident involving him being “pushed over”.
451 Ultimately, despite some plausibility concerning Mr Ogg’s explanation in his later affidavits that he did not wish to “name names”, I have serious reservations about accepting this explanation for the comparative dearth of evidence in the First Ogg Affidavit.
452 Third, and placing to one side the possibility that Mr Ogg was reluctant to “name names” in the First Ogg Affidavit, no satisfactory explanation has been advanced for the level of detail of new evidence in the Third and Fourth Ogg Affidavits compared with his earlier affidavits. In particular, I note that Mr Ogg made fresh allegations about new types of conduct not previously the subject of his evidence, such as licking, pulling down of pants, exposing of genitals, genitals in co-workers’ faces, and poking with a squeegee handle. The only explanation Mr Ogg could offer for not making reference to these types of conduct in the First Ogg Affidavit was, as he deposed in the Fourth Ogg Affidavit, his “recall” had been “pressed” following a series of questions (presumably by the lawyers for Mr Ford). I consider this explanation implausible, particularly in light of the passage of more than a year between Mr Ogg swearing the First Ogg Affidavit and the Fourth Ogg Affidavit. It is well settled that any delay can result in witnesses’ memories fading, with the result that evidence given about particular events may not be as clear or as accurate as when given closer to the time. As the Supreme Court of New Zealand observed in Rongonui v R [2010] NZSC 92:
52. … freshness of memory can reasonably be equated with reliability of memory. In general terms that accords with normal human experience. The fresher the memory at the time the document is made or adopted, the more reliable the memory of the witness is likely to have been.
(cf similar observations in Hassell v Adelaide Magistrates Court [2008] SASC 132 at [26], Citadel Property Group (Rockdale No 1) Pty Ltd v Capital Financial Australia Ltd [2016] NSWSC 890 at [66]).
453 To the extent that Mr Ogg claimed that his memory of events in 2016 was better in June 2019 than it had been in May 2018 (or even in September and November 2016 when he provided statements to Inghams), I consider such a suggestion to be farfetched.
454 Fourth, Mr Ogg’s evidence concerning alleged sexual harassment of other co-workers at Inghams (other than Mr Ford) was strongly denied by those co-workers. I note that:
Mr Varghese denied that Mr Phillips had exposed his genitals and slapped Mr Varghese in the face with them (affidavit of Bijo Varghese affirmed 5 July 2018 at [9]).
Mr Lucht denied that Mr Phillips had “put his testicles next to Mr Lucht’s face while he was bent over in the locker room” on at least three occasions or that Mr Rafferty had “touched and grabbed Mr Lucht in his genital area” or that Mr Waldock and Mr Rafferty had dry humped Mr Lucht approximately twice per week (affidavit of Kelvin Lucht affirmed 10 July 2018 at [8], annexure KNL-1).
Mr Hannett denied that Mr Phillips had put his genitals in Mr Hannett’s face (transcript p 914 ll 39-41).
Mr Flanders denied that he was present when Mr Waldock and Mr Phillips allegedly dry humped each other. In particular, I note the following exchange during cross-examination of Mr Flanders:
Right. And Mr Ogg says that you were present when Mr Waldock and Mr Phillips were dry humping each other; you never seen that?---No.
But that’s one of the things you would just say, “Cut it out, fellows. Get back to work”?---Beg your pardon?
That’s one of the things if you saw it you would just say, “Cut it out, fellows. Get back to work”?---It depends – like, some of those things I would have to bring up to my supervisor as well, but - - -
(Transcript p 1071 ll 29-37).
Mr Johnson denied that he had ever seen Mr Waldock, Mr Mole, Mr Rafferty or Mr Phillips do “anything wrong or inappropriate” at Inghams (transcript p 862 ll 33-43).
455 In circumstances such as these, where the alleged victims have denied the conduct occurring to them, and where at least two of these witnesses (Mr Lucht and Mr Hannett) no longer worked for Inghams at the time of either swearing their affidavits or the hearing itself (such that they could feel reluctance giving truthful evidence contrary to Inghams’ interests), there is no reason for me to give credence to allegations by Mr Ogg which run counter to those denials.
456 Fifth, Mr Ogg gave detailed evidence about alleged sexual harassment of himself in the Third and Fourth Ogg Affidavits. Although he deposed in the First Ogg Affidavit that “some of this happened to me”, none of the detail in the Third and Fourth Ogg Affidavits appeared in his earlier affidavits. I have already observed that I have serious reservations about accepting Mr Ogg’s claim that he feared being called a “narc” or a “dobber” if he “named names”. However, in the Fourth Ogg Affidavit, Mr Ogg’s alleged reticence extended to an overall fear of making a complaint at all at Inghams for fear of his working life at Inghams becoming uncomfortable, being abused by co-workers, and unspecified retaliation by supervisors at Inghams. In particular, I note the following evidence:
2. In paragraph 2 of my 18 May affidavit I state that I was concerned about my employment at Inghams. I will explain this statement. I was worried about talking to Inghams management about the behaviour I have described in my affidavits because I worked every day with the people I saw engage in this behaviour. I was afraid of being labelled a narc or a dobber by other workers for speaking up about this behaviour. Making a complaint would have made my employment extremely uncomfortable. First, I would have been in a bad position with other workers because of this fear and because workers on the line would have questioned me if I was seen speaking with management. I explain these things below. Second, some of the people involved or who failed to act were in a supervisory role such as leading hands and I was afraid they would get back at me if I made a complaint.
3. I had personal experience of being called a narc. I was called a narc by Kepa Bristowe, who I used to work with at Inghams, after I made a formal complaint about another worker who had pushed me over. I was also called a “fuckin’ narc” by Jordan Hill after he received a warning because of the formal complaint I made about his behaviour which is described in paragraph 10 of my 18 May affidavit. I felt other workers looked at me differently after I made these complaints. It made me uncomfortable.
4. I will explain being questioned by other workers after going to speak with management. The stairs leading to the managers’ offices where Mark Chan and Peter Bissett sat were visible from most of the work stations on the line. It was easy to see when workers went up to speak to management. I have seen employees going up the stairs and then heard workers on the line ask why the person has gone to speak to management. I have had this experiences when I went to see management. I recall speaking to management approximately one and a half to 2 years ago and when I returned to the line, Eldin Muhic asked me what I had discussed. He came across as being nosey. Soon after, other workers on the line asked me what I had discussed.
457 In my view this evidence is implausible for the following reasons:
Mr Ogg gave evidence that he had previously had no hesitation in making two formal complaints about the Jordan Hill incident, and being “pushed over”. I consider that if Mr Ogg was being sexually harassed, multiple times per week, by various co-workers, he would have not hesitated to formally complain. This is particularly so where, at least in respect of the Jordan Hill incident, there is evidence that Inghams took Mr Ogg’s complaint seriously and Mr Hill was disciplined as a result.
The alleged “involvement” of “supervisors” in the conduct Mr Ogg described presumably refers to Mr Lucht, Mr Hannett, Mr Johnson and Mr Flanders. As I have already noted, each of those witnesses rejected the suggestion that they had either participated in or witnessed the conduct alleged by Mr Ogg. Mr Rafferty also gave evidence that the supervisors would not have been privy to conduct beyond buttock patting.
Significantly, during the workplace investigation Mr Ogg gave a statement to Inghams management that he and other workers had, in the past, engaged in “horseplay”, and that it was “all for a laugh”. To the extent that I can make sense of Mr Ogg’s evidence, it appears that if there had been conduct at Inghams which was in any respect similar to that alleged by Mr Ogg in the Third and Fourth Ogg Affidavits, it was, in Mr Ogg’s view, “friends and workmates play[ing] around a bit and joke[ing] around”, such that he would not have complained about it.
458 Sixth, Mr Ogg provided no dates or time periods in any of his affidavits for any of the conduct he claimed he witnessed or was subjected to. He gave oral evidence that, after the incident with Mr Hill in 2014, nothing serious like that happened again, “may be [sic] a pat on the back side and that, but nothing like that really that I can remember” (transcript p 448 ll 21-30; p 456 ll 16-19).
459 In cross-examination, Mr Ogg was unclear on dates, but estimated that: the testicle cupping occurred from 2009 until “I don’t know when” or 2015 (transcript p 457 ll 14-25; p 461 ll 29-32); and the anus poking occurred from 2009, but he didn’t think it happened in 2016 (transcript p 456 ll 39-41). His evidence generally in this regard was:
I’m suggesting to you that what you’ve said in your evidence today is that Michael Rafferty and Brendan [sic] Waldock poked their fingers up your anus from 2009 until as late as 2016?---I don’t think it happened in 2016, right up - - -
No?---It happened back in 2009.
Yes?---When I first was there, that stuff was happening, the real not-very-nice stuff. But as it got later to when I was leaving, that stuff wasn’t happening.
I suggest to you it wasn’t happening when Richard Ford worked at Inghams’?---It doesn’t really matter. It was happening, shouldn’t be happening.
(Transcript p 456 – 457.)
460 Mr Ogg also gave evidence that Mr Phillips engaged in the conduct of exposing his genitals and bringing them close to someone’s face probably in the period between 2012 to 2014 and the incident with Mr Phillips doing so to Mr Varghese probably happened somewhere between 2009 and 2014 (transcript p 462 ll 32-46).
461 Mr Ogg’s evidence that there was a pattern of conduct of an inappropriate and sexual nature occurring in 2008 and 2009, is consistent with other witnesses’ evidence, such as Mr Rafferty. However, Mr Ogg was vague about the time at which this type of conduct ceased, and Mr Ogg was also vague and inconsistent about whether any conduct (other than buttock patting) continued past 2014. He agreed on several occasions that nothing serious had happened to him after the incident involving Mr Hill, though buttock patting continued, and he wrote in his statement in September 2016 during the workplace investigation that he “hadn’t seen much of it going on lately”. However, Mr Ogg deposed during cross-examination that some of the earlier inappropriate conduct may have still been occurring in 2015 and 2016.
462 Mr Ogg’s inconsistency of evidence in respect of timing makes his evidence unreliable.
463 I am not prepared to accord any weight to evidence of Mr Ogg.
Mr Ly
464 At the time of the hearing, Mr Ly had been employed by Inghams for approximately five years, and was working at Inghams as a dispatch worker. He gave evidence in a number of affidavits and orally at the hearing.
465 In relation to the credibility of Mr Ly, the applicant submitted:
He was an impressive witness.
He was forthright and clear in his responses.
He was frank about his contact with Mr Ford and stated that their last conversation was three years before the trial.
He was clear in describing in his affidavits the sexual harassment conduct that had happened in the Red Area on the afternoon shift.
466 In relation to the credibility of Mr Ly, the respondents submitted:
His evidence in relation to having witnessed a range of the alleged conduct occur and with the frequency he claimed was inconsistent with the objective state of affairs (in particular, the layout of the rooms and the number of people rostered to work in that room at that time).
He provided a further affidavit containing new evidence four weeks before the hearing after being asked a series of questions by the solicitors for the applicant.
He was an unresponsive and unreliable witness without credit.
It was inconsistent with his allegation that Mr Waldock had sexually harassed and assaulted him that he would visit Mr Waldock’s house to collect purchased musical instruments.
467 Mr Ly was a well-spoken witness, confident in his oral evidence. I am not persuaded that he was unresponsive to questions put to him during cross-examination.
468 Mr Ly’s evidence in respect of alleged behaviour towards him by Mr Rafferty and Mr Waldock was detailed, although not as to dates or time period (a point he conceded: affidavit of Sanan Ly sworn 6 June 2019 (Third Ly Affidavit) at [7], [20]). It is unclear to me from Mr Ly’s evidence when the conduct he alleged perpetrated by Mr Waldock, Mr Rafferty and Mr Mole supposedly occurred. Mr Ly deposed in both his first and third affidavits that the alleged conduct had “calmed down a lot”, referable to action being taken by Mr Ford.
469 I find it difficult to accept Mr Ly’s evidence that he did not make a complaint against other people at Inghams because he “felt scared”, or did not wish to be bullied or victimised. Mr Ly impressed me as a person who would speak out against conduct towards him that he found offensive. His preparedness to give his affidavits, and his evidence during cross-examination, is at odds with the applicant’s portrayal of him as a witness who was afraid of retaliation by co-workers who were aware of his evidence.
470 Further, Mr Ly’s evidence (I note, for example, the exchange between Mr Ly and Counsel for the respondents at transcript pp 482-483) was that, in the past, he had confronted co-workers who had behaved in an offensive manner towards him. This was consistent with the impression of him I received during cross-examination that he would not tolerate conduct towards him which he found offensive.
471 I derive little assistance in assessing the credit of Mr Ly from the submission of the respondents concerning the visit to Mr Waldock’s house by Mr Ly around January 2017, to which Mr Waldock deposed in his affidavit sworn 5 July 2018. The gravamen of Mr Waldock’s evidence was that a co-worker at Inghams and Mr Ly had attended Mr Waldock’s house, where the co-worker had collected musical instruments and equipment that Mr Waldock was selling. Mr Ly was not cross-examined concerning this event, and did not respond to that evidence in his own affidavits. An inference can be drawn that he was simply accompanying a co-worker to collect the instruments – the fact that the instruments were at the house of Mr Waldock is irrelevant. There was no suggestion that Mr Ly visited Mr Waldock for the purpose of socialising with him outside of working hours.
472 Three issues which cause me concern, however, in relation to Mr Ly’s evidence are that:
(1) Mr Ly gave evidence concerning alleged conduct of the respondents that no other witness gave;
(2) it became apparent during cross-examination that Mr Ly had spoken to Mr Ford about his claims after Mr Ford left Inghams, and I consider there is a risk of contamination of Mr Ly’s evidence in this regard; and
(3) Mr Ly gave further evidence in the weeks before the trial in response to questions put by Mr Ford’s lawyers, and I have doubts as to the reliability of that further evidence.
473 In relation to the first issue, it is clear that Mr Ly gave his evidence in these proceedings against a background of what was clearly his resentment of Mr Hannett, and Mr Ly’s perception of Mr Hannett’s favouritism of Mr Waldock, Mr Rafferty and Mr Mole concerning the type of work which they were given and the overtime which they received. I note the following evidence of Mr Ly in his affidavit sowrn 3 August 2018 (Second Ly Affidavit):
While Mr Hannett was employed at Inghams I observed that he favoured Brendan [sic] Waldock (Waldock), Michael Rafferty (Rafferty) and George Mole (Mole) compared to other employees, because he knew about the conduct they were engaging in and continued to roster them on overtime and easier, less physically demanding duties. I was disappointed that as a supervisor, Mr Hannett did not reprimand them or try to stop their behaviour when he was aware that the behaviour was happening because it was rife in the Red Area.
474 Mr Ly denied that he had “an axe to grind with Glenn Hannett”, contrary to the view of the independent investigator, Mr Salter. I consider, however, that it is likely that Mr Ly did resent Mr Hannett for his supposed favouritism of these respondents. I do not accept his evidence that he was indifferent to this supposed favouritism of Mr Hannett for the following reasons:
That Mr Ly went to the trouble of giving the evidence that he deposed in respect of Mr Hannett suggested that he was resentful.
Mr Ly also stated that he was “disappointed” in Mr Hannett, which was not consistent with an indifferent mindset.
As Mr Hannett had left Inghams in July 2016, the alleged incidents of favouritism clearly occurred years before, and it is curious that Mr Ly should retain his feelings of disappointment in respect of this alleged favouritism for that length of time.
475 While possibly only a minor point, I nonetheless consider it potentially more than coincidental that Mr Ly should give such damning evidence as he has against three of the respondents, whom he clearly considered had unfairly received favoured treatment from a former supervisor, when no other credible witness gave evidence to which Mr Ly deposed.
476 In relation to the second issue concerning Mr Ly’s credit, I note in particular, the following exchange:
Okay. In that – in paragraph 5 there you say:
I still maintain contact with Richard through Facebook and telephone calls.
?---Yes.
Have you maintained that contact up until the trial has commenced in this matter?---I haven’t spoken to Richard for a while. I’ve received a few messages on Messenger, but I have not spoken to him for quite a while now.
After he left Inghams’ did you have some discussions about the types of things that he was complaining about happening to him?---Yes.
Okay. And so he told you what he was complaining about?---Yes.
When do you think you had that conversation with him?---Roughly about three years ago.
Okay. So that’s 2016?---Yes, because – I remember we spoke at my house, and I’ve moved in not long after.
Okay?---And he visit me at my house one time.
All right. And when did you move into your house?---About three years ago.
But I suppose I’m just asking you just to recall – in your evidence for example, at paragraph 5 you say:
In September 2016 Richard told me that he had made a complaint to the human- rights Commission.
?---Yes.
Do you think Richard visited you before or after he made that complaint to the human-rights Commission?---He told me about the human-rights Commission when he came to my house. He showed me some documents.
Okay. Do you remember what the documents were?---That – something to do with the human-rights Commission, and some people were being notified in regards to his claim.
Okay. And do you recall seeing some of what he was complaining about, the types of things, he was saying, had been done to him?---I remember reading the document. I can’t tell you what was in the document.
Did you help him put it together?---No, I didn’t.
Did you give him any information prior to him putting that complaint in?---To Human Rights? No.
Did you have any information to Richard about things you had seen?---Yes. I have.
Prior to him putting in that human-rights Commission complaint?---Prior – you mean “before”?
Yes?---Yes.
(Transcript pp 481-482.)
477 The difficulty with Mr Ly’s evidence, at least in his first affidavit sworn 19 May 2018 (First Ly Affidavit), is that it is apparent that he spoke to Mr Ford about the alleged conduct prior to providing an affidavit in these proceedings. Mr Ly claimed he had “information to Richard about things [he] had seen” – which I take to be a reference to his having been subjected to, or having witnessed conduct either generally or involving Mr Ford specifically – before he spoke to Mr Ford about the alleged conduct and the AHRC complaint. However, the risk of contamination of his evidence cannot be discounted. This possible unreliability is illustrated by the fact that Mr Ly gave evidence of witnessing conduct, for example, simulated oral sex conduct, in the afternoons in the feather room, when roughly six or seven other employees would have been in that room (transcript p 169 ll 29-37), and no other witnesses gave evidence of having witnessed such conduct.
478 In relation to the third issue concerning Mr Ly’s credit, four weeks before the trial Mr Ly provided a further affidavit containing new evidence after being asked a series of questions by the solicitors for the applicant. That is a concerning development. Regardless of the possibility of contamination as I have just discussed, the First Ly Affidavit was comprehensive in respect of his evidence. The Third Ly Affidavit represented a considerable expansion of the First Ly Affidavit, with much greater detail, particularly in respect of [6] of the First Ly Affidavit. In my view the evidence in the Third Ly Affidavit should be approached with considerable caution, not only because it is apparently responsive to questions put by the solicitors for Mr Ford, but because the First Ly Affidavit is much closer in time to the alleged events and, on balance, is likely to be more reliable.
479 Overall, I consider Mr Ly to be a witness of some credit. However, in light of:
the absence of detail in respect of time periods in his evidence;
his implausible claim of fear of other co-workers;
his clear resentment of at least three of the respondents as the alleged recipients of unfair favouritism;
the fact that he admitted to having spoken with Mr Ford prior to swearing his first affidavit; and
the fact that he gave evidence unsupported by any other witness of credit,
I consider his evidence should be approached with considerable caution.
Ms Hanner
480 Ms Hanner is the wife of Mr Ford. She gave evidence both orally at the hearing, and in an affidavit sworn on 4 June 2018. At the time of the hearing, Ms Hanner and Mr Ford had been in a relationship for 25 years, and married for 23 years.
481 In relation to Ms Hanner, the applicant submitted as follows:
Ms Hanner was a very nervous and self-conscious witness;
she gave an honest account; and
her evidence included Mr Ford’s account of his experiences at Inghams.
482 The respondents relevantly submitted the following in relation to the credibility of Ms Hanner’s evidence:
Ms Hanner gave evidence that Mr Ford had told her “early on in his employment” about Gay Fridays, however her evidence lacked particularly; she did not explain the “sexual behaviour” Mr Ford told her that Gay Fridays involved.
Ms Hanner gave evidence that she was informed on 1 September 2016 by Mr Ford that he was being sexually harassed, however she has never seen, heard nor observed the conduct alleged.
Ms Hanner originally gave evidence that Mr Ford’s depressive symptoms were not experienced until leaving work with Inghams, although there were some personality changes from November 2015. She then conceded that he had struggled with alcoholism, had had depressive episodes, and been medicated for depression in 2002 to 2005, 2014 and 2015.
483 Ms Hanner appeared to be quite strong emotionally, and gave evidence in a credible fashion. I note however that, other than her observations of Mr Ford, her evidence as to what occurred at Inghams is no more than hearsay.
484 I consider Ms Hanner a credible witness.
Mr Rafferty
485 Mr Rafferty worked at Inghams from 2008 until September 2016. Mr Rafferty gave evidence both orally and in an affidavit sworn 7 July 2018.
486 The credibility of Mr Rafferty is very important to determination of a number of issues in this case.
487 In relation to the credibility of Mr Rafferty, the applicant submitted, in summary, as follows:
His evidence was consistent with a guilty mind by constructing fanciful and absurd scenarios for his version of dry humping and pretend anal sex (which did not involve any contact between the perpetrators genitals and the recipient), the descriptions of which were highly improbably and risible.
The broad elements of his admissions about the conduct in the Red Area were similar to the conduct alleged by the applicant.
His affidavit was designed to reduce references to the feather room in aid of putting distance between himself and Mr Ford’s allegations.
His evidence demonstrated that he was an apologist for the behaviour.
He went to complex and evasive lengths to avoid naming people, pointing only to a group of Korean workers who were no longer in the jurisdiction.
He showed a nasty streak in his attack on Mr Bhardwaj.
At times he struggled to answer questions, and was evasive.
His normalising of the serious acts of sexual harassment evidenced that he saw nothing wrong with the behaviour and still does not.
His account of conduct being consensual because he would only do it where the other worker had done it to him first, was implausible.
The assertion that Mr Ford’s complaint was vengeance for the truck issue was fanciful as there was no evidence (other than Mr Rafferty’s) that Mr Rafferty reported it, and no evidence that Mr Ford knew of Mr Rafferty’s alleged role.
488 In relation to all the respondents’ witnesses, including Mr Rafferty, the respondents submitted, in summary, that:
They were credible witnesses of truth.
They were clear and consistent in their denials of Mr Ford’s claims.
They were authentic in their presentation and truthful.
489 In relation to Mr Rafferty’s credit I make the following observations.
490 First, Mr Rafferty appeared very nervous when giving evidence, however again I consider this not unusual in the formality of the Court room, particularly with witnesses who have little or no Court room experience.
491 Second, Mr Rafferty was young when he commenced working at Inghams – I understand approximately 22 years of age. During cross-examination he deposed that when he was “dry humped” for the first time after commencing working at Inghams he was shocked, but he “took it in a jokingly way as they were trying to be friendly” (transcript p 517 ll 7-8). He continued:
They were trying to be friendly?---Yes.
No one asked permission to dry hump you, did they?---No.
They didn’t walk up and say, “Hey, Michael, can we dry hump you?” They didn’t do that, did they?---No.
And when someone simulated oral sex on you for the first time, how did that make you feel?---I didn’t take it personally.
Didn’t take it personally?---Yes. I was trying to fit in.
Trying to fit in?---Yes.
Do you remember who did that to you?---Maybe Ashley, the same person, yes.
And the first time someone simulated anal sex on you, who did that, do you know?---I don’t know.
How did you feel after that?---Just like – I was trying to fit in.
Just trying to fit in?---Yes.
But I’m asking you how you felt. You felt good, did you?---No, I didn’t feel good.
Did you feel sickened by it?---What does that mean?
It means you were revolted by it?---I didn’t take it as a manner that they meant it in that way.
What does that mean?---I didn’t feel targeted, because I could see it going on with other people.
And so you thought this was a normal thing?---I didn’t think it was normal, but the situation of the – where we worked, with the slaughter of chickens, I didn’t take that as normal either.
Well, I’m having difficulty seeing the connection, Mr Rafferty. Did then - - -
HER HONOUR: Sorry, can I ask what do you mean by that?---That it was a very hard job to deal with because it was a horrible job, having to do that with chickens, and people would do things to try and take their mind off it. So some people did things a bit over-the-top to try and push the mindset away that you’re killing chickens all day. It was a horrible job.
So it was distracting?---Yes.
Releasing tension?---Maybe, yes.
Perhaps distracting is a better description?---Sorry?
Distracting?---Distracting, yes.
Take your mind off what’s going on?---Yes, and I think people would do things like that to – they would do anything to distract their mindset from the horrible job that we had to do. It was horrible. Yes, I still think, “How did I do that job?” Like – yes, it was a distraction.
Would it be fair to say people go over the top because they’re trying to take their mind off it?---Yes. So as – and a lot of this mainly happened when I started in the hanging room, where you’re slamming poor little chickens into shackles, and that’s where a lot of this happened, because people were trying to take their mindset off what they’re doing. Yes.
Thank you?---Thank you.
(Transcript pp 517-518.)
492 In my view this evidence is credible. I accept it, and Mr Rafferty’s explanations that employees at Inghams may have acted in the way he described when he commenced work there, and particularly acted so in the hanging room, because of the difficult nature of the work and the desire of employees to take their minds off its challenging aspects.
493 Third, Mr Rafferty was exceedingly frank in relation to the occurrence of “Gay Fridays” at Inghams as well as the conduct associated with, or following on from, “Gay Fridays”. He presented as honest in giving evidence of the types of conduct he had witnessed and engaged in during his employment at Inghams, as well as the people he had see engage in such conduct. I consider his evidence in this regard to have been highly credible.
494 Fourth, I consider that Mr Rafferty answered questions to the best of his ability. I note for example, the following evidence:
Okay. Well, when you’re in the feather room, who patted you on the bottom?---A lot of people.
List of names, please?---I don’t remember.
Wade?---Wade, Brenden - - -
Glenn?---Not in the feather room.
When did he do it?---Glenn made a pat at me on the bottom once, coming out of the office, but not in, like, a sexual way, just a joking way, once or twice.
Jason Flanders – in the feather room?---Jason never patted me on the bottom.
Which others?---I can’t remember names. So, a lot of the Koreans used to. A lot of the what? Sorry?---A lot of the Korean workers.
Did it to you?--- Yes. Hapun - - -
Brenden, did you say?---Brenden.
Is that a yes to Brenden?---Yes.
And grabbing - - -?---If I had a list, I could tick it off.
It’s not funny, Mr Rafferty?---I – sorry. That was a nervous laugh.
Grabbing your bottom, who did that?---In the feather room?
Isn’t that what the question just was?---So, it’s the same people: Brenden, Wade is all you can remember?---There was more people. It has been - - -
MS REECE: Your Honour, he did actually nominate other people. He nominated some Korean workers and gave a name. I think it was Hapun, or something like that.
THE WITNESS: Yes. There was others I – I can’t – I haven’t worked there for three years, and a lot of the – the names of people were quite hard to remember. Eldin - - -
(Transcript pp 520-521.)
495 I do not accept the submission of the applicant that Mr Rafferty deliberately “avoided naming names” – this excerpt from the transcript is illustrative that he was prepared to do so.
496 Fifth, evidence of other witnesses who knew Mr Rafferty, but were not friends with him, was that they were surprised that Mr Rafferty had been accused of sexual harassment. In particular, I note the following evidence of Mr Collett during cross-examination:
And you go on to say Richard’s complaint was a scam, and I think you also say, don’t you, that you didn’t think that Raf – or Michael – was capable of sexual harassment?---I hadn’t seen it.
No. But you go further than that. You say he wasn’t capable of it?---Well, I hadn’t seen it and I wouldn’t have thought he would have been capable of it. Correct.
What do you mean by that?---Well, I hadn’t seen it. And I didn’t think that he was capable of it.
HER HONOUR: Is that because of the personality of Mr Rafferty? I’m just trying to understand why you would think he wasn’t capable of it?---I thought Michael Rafferty was a really nice guy. I never had a lot to do with him, and when I did was when I was learning the forklift experience. I had my forklift licence and was thrown in the deep end, possibly to fail, and Michael Rafferty was one guy that helped me out immensely in that situation under pressure. Right. Thank you.
MR REIDY: And you therefore developed a bond and friendship with him?---Again, I thought he was pretty decent guy. I never had any work – anything to do with him outside of work, and I was an acquaintance at work with Michael and thought he was a good guy, yes.
(Transcript pp 818-819)
497 Similarly, Mr Johnson deposed that he had never seen Mr Rafferty do anything “wrong or inappropriate” at work (transcript p 862 l 41).
498 That co-workers who were not respondents, and were not friends with Mr Rafferty, would speak favourably of Mr Rafferty, speaks favourably towards his character.
499 Sixth, I note that Mr Rafferty provided a resignation letter to Mr Chan on 9 September 2016, which was 4 days after Mr Ford provided his written complaint to Mr Chan.
500 Mr Chan gave evidence that he had spoken to Mr Rafferty about Mr Ford’s complaint prior to Mr Rafferty resigning (transcript p 789 ll 3-10). Mr Chan believed that he made notes of that conversation, but those notes were not provided as evidence before the Court (transcript p 792 ll 37-40). Mr Chan did not recall a specific reason for Mr Rafferty resigning, as there was no reason stated in the resignation letter.
501 When Mr Rafferty was asked about his resignation during cross-examination, the following exchange took place:
MR REIDY: Thank you, your Honour. You resigned from Inghams on 9 September 2016, Mr Rafferty?---Yes.
You gave two weeks termination notice?---Yes.
And finished on 23 September 2016?---Yes.
And your resignation was a week after Richard made a formal complaint to Mark Chan, wasn’t it?---Yes.
And you say you resigned for personal reasons?---Yes.
What were those reasons?---I was in the middle of a pest control course, and I went and worked for the father-in-law doing cleaning for 12 months with the understanding of actually doing pest control. It was a pest control cleaning business.
(Transcript pp 530-531.)
502 Whilst it is noteworthy that Mr Rafferty would submit a resignation letter four days after Mr Ford made allegations of sexual harassment against Mr Rafferty, and after Mr Rafferty had spoken to Mr Chan about Mr Ford’s complaint, in the absence of further evidence and in light of Mr Rafferty’s plausible explanation for leaving, little can be made of Mr Rafferty’s resignation.
503 Overall, Mr Rafferty was authentic in presentation, his evidence was consistent with his affidavit evidence and prior statements, he gave evidence in a forthright and compelling manner, and he was able to give relevant examples to explain his answers.
504 I consider that Mr Rafferty was a very credible witness.
Mr Collett
505 Mr Collett had been employed by Inghams since 26 July 2013 at the Murarrie facility. He gave evidence that he was the “face of the union” at the Inghams’ workplace at relevant times, on occasion formally acting as a union delegate, and was a member of the enterprise bargaining committee (transcript pp 809-810).
506 In relation to the credibility of Mr Collett, the applicant relevantly submitted:
Mr Collett was a current employee of Inghams and would not want to jeopardise his position (having already had a disciplinary encounter in 2016) by admitting to any of the conduct alleged.
He had conversations with Mr Waldock about the case and what was going to be said in response to the allegations.
507 Mr Collett struck me as a mature man, who gave evidence in a confident and credible manner. I consider it likely that he would have been intolerant of conduct towards him to which he was not receptive.
508 Mr Collett deposed that he had been friendly with Mr Ford at work, and that while Mr Ford was overseas on holiday Mr Collett had looked after Mr Ford’s animals and collected his mail. However, in May 2016 Mr Collett received a first and final warning from Mr Chan for smoking outside the chemical room, which resulted in loss of all privileges for 12 months, his demotion as trial leading hand, and not being assigned forklift duties or allocated overtime. Mr Ford gave evidence that he had been asked by Mr Lucht if Mr Ford was aware of Mr Collett smoking, and when Mr Ford indicated he was, he was asked to sign a statement that he had witnessed Mr Collett smoking. Mr Collett claimed he told Mr Ford that “it would be a bit hypocritical if [he gave] a statement about [Mr Collett] smoking when [Mr Ford was] just having a cigarette with [Mr Collett]”. Mr Collett deposed that he had withdrawn from his friendship with Mr Ford after this.
509 I consider this evidence concerning his friendship with Mr Ford (and the cooling of that friendship) credible.
510 Mr Collett also made concessions where appropriate – for example, in respect of seeing buttock slapping of others at Inghams.
511 I do not accept the submission that Mr Collett’s evidence should be treated with some form of caution because he would not want to jeopardise his employment with Inghams by admitting to engaging in conduct. An equally plausible proposition is that Mr Collett did not engage in any of the conduct alleged by Mr Ford because he did not want to similarly jeopardise his employment with Inghams.
512 The applicant submitted that Mr Collett had conversations with Mr Waldock about the case and what was going to be said, which appears to relate the following exchange during Mr Collett’s cross-examination:
Okay. Now, you recall 2016, towards the end of 2016, there was a big investigation carried on at Inghams’ over the complaints made by Richard?---Yes.
Lots of staff were brought in to attend interviews with an investigator. That went on for a little while, didn’t it?---Yes.
And then investigators came back and got signed statements off employees?---Yes.
You all talked about it at the workplace. It was a big thing?---Yes and no. Yes.
What do you mean yes and no?---Well, it was, but, you know, some people wanted to carry on the conversation, and I wasn’t into it.
Carry on what conversation?---The accusations that had been made.
By what – what – could you just elaborate that on a bit – elaborate on that a little bit more?---Well, Richard had made accusations, and there was whispers going around the workplace, and I wasn’t aware that he had gone through the union. I wasn’t in management. So I didn’t know what was going on.
You heard people talking about the investigation and Richard’s accusations in the workplace?---Yes.
So you knew what those accusations were?---Not at the start when the accusations were made.
But certainly by the time that the investigators arrived, you knew that Richard was making allegations of sexual harassment?---Yes.
And that they were against, in particular, Brenden?---Yes.
Michael?---Yes.
And Wade?---Yes.
So that was common knowledge and talked about throughout the factory?---Yes.
And there were occasions when you were in or around conversations where there was much more detail discussed around those allegations?---Yes.
And what people were going to say in response to them?---Yes.
Yes. And did that include people such as George Mole?---Yes.
Brenden?---Yes.
Sax?---If he was – yes. No, I wouldn’t have. Probably not.
Yes?---Just the relationship that I had with him in the working place, probably not.
What was that?---Well, he was a trainer and acting supervisor.
Yes?---And I didn’t have that sort of relationship with him.
BJ?---BJ was in the workplace, but I can’t recall having a conversation with him.
Do you know an Edwin Okoro?---Edwin?
Yes?---Yes.
Was he part of the conversation?---I wouldn’t have had a conversation with him about it, I wouldn’t have thought.
(Transcript pp 806-807.)
513 However, what is meant by “much more detail discussed” and “what people were going to say in response” are not precise matters. It is not clear from this line of cross-examination how much detail of Mr Ford’s allegations were discussed by workers at Inghams, or how detailed the intended responses to such allegations were. Workers may simply have been speaking about the fact that they would deny the allegations because they were untrue. Further, even if Mr Collett had been “in or around conversations” where Mr Mole and Mr Waldock indicated what they were going to say in response to the allegations, it does not explain the consistency of their evidence with evidence of other witnesses for the respondents.
514 This evidence be contrasted with the circumstances of contamination surrounding Mr Ogg’s evidence. It is clear from Mr Ogg’s cross-examination that he spoke to Mr Ford prior to giving the Fourth Ogg Affidavit and the particular matters he spoke to Mr Ford about (including the incident alleged in Agreed Issue 1(q)). Further, the Fourth Ogg Affidavit included those particular matters they discussed, as well as mimicked allegations of Mr Ford in respect of alleged events not included in earlier affidavits of Mr Ogg.
515 I note that while Mr Collett was “in or around conversations” where Mr Mole indicated his proposed response to the allegations against him, Mr Collett’s evidence is not consistent with Mr Mole’s evidence. For example, in relation to Agreed Issue 1(r), Mr Mole’s evidence was that he used the term “cocksucker” on one occasion with Mr Ford, but did not generally talk in such a fashion. In contrast, Mr Collett’s evidence was that he had heard Mr Mole use the term “cocksucker” in 2016 and 2017 and that Mr Mole was “probably” someone who would use the expression “sucks the boss’s cock” (transcript pp 814-815).
516 The evidence of collusion on the part of the respondents’ witnesses is simply not persuasive. No other witness was cross-examined about these discussions that took place. I am not satisfied from answers by Mr Collett during this line of cross-examination that he, or other witnesses for the respondents, colluded in respect of their evidence.
517 I consider Mr Collett to be a witness of credit.
Mr Phillips
518 Mr Phillips had been an employee of Inghams since 2007. He deposed that he worked as a process worker, and began an apprenticeship in fitting and machining at Inghams in 2018.
519 In relation to the credibility of Mr Phillips, the applicant submitted:
He had a strong and vested interest in keeping his job as he had started a mature age apprenticeship, which constituted a real advancement in his life.
He was an extremely wary and vigilant witness.
Mr Phillips made no mention at all of reporting the incident involving Mr Ogg and Mr Hill, despite his “bold claim” in the affidavit that he would report any inappropriate workplace conduct to a supervisor and make a complaint.
His evidence in relation to buttock patting, which was that he had only seen it a few times over 12 to 13 years, conflicted with the evidence or Mr Waldock and Mr Rafferty, such that his credibility was reduced.
His version of “Gay Fridays” did not involve touching, and he claimed to never have participated in it. He distanced himself from knowledge and participation in “Gay Fridays”.
520 Mr Phillips in his affidavit affirmed 6 July 2018 deposed:
19. Richard and I were friendly both in and outside of work. I have dropped him home from work before. We had been on bike rides together and I test rode a motorcycle for him because did not have the correct licence to do this himself. In the middle of January 2016, a week before Australia day, Richard joined Brenden Waldock and me at the Belmont tavern for a beer after work. After a couple of hours, I decided to leave because I did not want to drive over the limit. Richard said he had nothing planned for the day so I invited him to my house. We were at my house for a while and Richard said he had beer at his place and offered to drive me there. At his house, he introduced me to his wife and daughter and we had a few beers and a swim. He also introduced me to his two dogs.
521 Mr Ford did not dispute this evidence. I consider this evidence of Mr Phillips to be credible and evidenced a friendship between Mr Ford and Mr Phillips as late as January 2016.
522 Mr Phillips appeared to give his evidence carefully, however I do not think that the care he took in giving his evidence meant that he was untruthful. Although he said that he had not participated in “Gay Fridays”, I think it likely that he would have engaged with others, such as Mr Rafferty, in “Gay Fridays” conduct, even in a responsive fashion.
523 I also note that Mr Phillips had an apprenticeship with Inghams, and to that extent had a great deal to lose if his relationship with Inghams deteriorated. However, again I do not think that this meant that his evidence was not credible.
524 In attacking Mr Phillips’ credit, the applicant submitted:
He has an identical strange gesture to Mr Waldock and Mr Rafferty for what he described as doing oral sex to yourself. This is so even though he can’t recall a specific instance of seeing it. P-678, l 7-9. He must have spoken to either or both of Mr Waldock and Mr Rafferty to get the same hand gesture which he cannot remember seeing at work. It cannot be coincidental that both Mr Phillips and Mr Waldock were identically shy in their demonstration of identical oral sex hand gestures.
525 I do not accept this curious submission. An equally plausible explanation for Mr Phillips using the “hand gesture” described by the applicant, despite the applicant’s apparent puzzlement, is that the gesture employed by Mr Phillips (and Mr Waldock, and Mr Rafferty) is a commonly recognised simulation of oral sex. The apparent reticence of all of these witnesses, in a public environment, demonstrating such an intimate act, is, in my view, unsurprising and understandable.
526 Overall, I consider that Mr Phillips was a credible witness.
Mr Muhic
527 Mr Muhic had worked at Inghams since 2012 as a process worker. Mr Muhic was a young witness and appeared reserved.
528 The applicant submitted that Mr Muhic “had a bond with Inghams, and a certain level of importance attaching to his continued employment” (transcript p 1213 ll 16-22). The fact that Mr Muhic worked at Inghams did not of itself mean that he had a “bond” with Inghams, or that his evidence was skewed, falsely, towards supporting Inghams’ case.
529 Certainly, for example, Mr Ly did not appear to feel any threat to his employment at Inghams in giving evidence against Inghams, and there is no reason for me to conclude that Mr Muhic, or any other witnesses working at Inghams at the time of their oral evidence, would have felt pressured into giving evidence against Mr Ford’s case. A more plausible explanation for Mr Muhic’s evidence – to the extent that it was supportive of the case of the respondents – was that he was telling the truth.
530 The applicant also submitted that Mr Muhic was a “peripheral” witness as he had limited involvement in the feather room. I do not consider that this affects the weight to be attributed to Mr Muhic’s evidence. Some of the conduct alleged by Mr Ford related to the locker room, and Mr Ly claimed that certain types of conduct also occurred in the hanging room. Further, the applicant claimed the existence of a certain culture at Inghams, as well as there being a tendency on the part of the respondents to engage in behaviour similar to that which Mr Ford alleged. Whilst Mr Muhic may have had limited involvement in the feather room, his evidence is patently relevant in other respects.
531 I consider Mr Muhic a credible witness.
Mr Okoro
532 Mr Okoro had worked at Inghams since October 2014 and stated that he liked working there. I take the same view concerning Mr Okoro’s alleged “bond” with Inghams (and his evidence) as I took with Mr Muhic’s evidence. I do not consider that Mr Okoro’s evidence was contaminated by concerns for maintaining his employment at Inghams, as submitted by the applicant.
533 The applicant also submitted that Mr Okoro was a “peripheral” witness. For the reasons I gave in relation to Mr Muhic’s evidence, I do not consider this submission accurately captured the relevance of Mr Okoro’s evidence, or should affect the weight I give to the evidence of Mr Okoro.
534 I consider Mr Okoro a credible witness.
Mr Dhanoa
535 Mr Dhanoa commenced employment with Inghams as a process worker in November 2014.
536 I take the same view concerning Mr Dhanoa’s alleged “bond” with Inghams (and his evidence) as I took with Mr Muhic’s evidence. I do not consider that Mr Dhanoa’s evidence was contaminated by concerns for maintaining his employment at Inghams, as submitted by the applicant.
537 The applicant also submitted that Mr Dhanoa was a “peripheral” witness. For the reasons I gave in relation to Mr Muhic’s evidence, I do not consider this submission accurately captured the relevance of Mr Dhanoa’s evidence, or should affect the weight I give to the evidence of Mr Dhanoa.
538 I consider Mr Dhanoa to be a credible witness.
Mr Rahiwi
539 Mr Rahiwi commenced employment with Inghams as a process worker in June 2014. He worked in the halal room, and gave evidence that he would speak with Mr Ford and other Red Area workers in the smoking area at Inghams on occasion.
540 In his affidavit, Mr Rahiwi denied that he had been poked in the anus by Mr Phillips as Mr Ford alleged. He also deposed that he was unsure who Mr Phillips was. Having seen and heard Mr Rahiwi being cross-examined in the witness box, I accept his evidence to that effect, as I am satisfied that Mr Rahiwi would not tolerate conduct towards him of the nature alleged by the applicant. I also accept that Mr Rahiwi was unsure of the identity of Mr Phillips – simply because they worked at the same factory did not mean that they were acquainted.
541 I take the same view concerning Mr Rahiwi’s alleged “bond” with Inghams (and his evidence) as I took with Mr Muhic’s evidence. I do not consider that Mr Rahiwi’s evidence is contaminated by concerns for maintaining his employment at Inghams, as submitted by the applicant.
542 The applicant also submitted that Mr Rahiwi was a “peripheral” witness. For the reasons I gave in relation to Mr Muhic’s evidence, I do not consider this submission accurately captured the relevance of Mr Rahiwi’s evidence, or should affect the weight I give to the evidence of Mr Rahiwi.
543 I consider Mr Rahiwi to be a credible witness.
Mr Lucht
544 Mr Lucht worked at Inghams from approximately 2000 until April 2017. He initially worked in the role of production worker, and then as a leading hand/backup supervisor.
545 Mr Lucht was a mature man who adopted a no-nonsense approach to the workplace. I consider that he would have been firm in dealing with workers whom he supervised at Inghams if they behaved in a manner of which Mr Lucht did not approve.
546 Mr Lucht answered questions directly and firmly during cross-examination. I consider his evidence credible in respect of conduct he may have witnessed in the working environment between friendly co-workers.
547 However, I have concerns in relation to Mr Lucht’s evidence that he had never heard “abusive language” at Inghams, including from such workers as Mr Mole (transcript pp 1028-1029). Evidence of Mr Flanders was that workers at Inghams had “tradie mouths” and that he had heard “a lot” of verbal interactions between workers, some of which had been abusive (affidavit of Jason Flanders sworn 6 June 2018 at [14]). I consider it likely that swearing among workers would have been common. It may be that workers were less inclined to swear in front of Mr Lucht in light of his being an older man and the fact that he acted as back-up supervisor (and was perhaps therefore more senior than other leading hands). However, I consider that Mr Lucht would have heard swearing, and potentially abusive language among workers at Inghams. I also consider Mr Lucht’s evidence that he would have “pulled that person aside” in the event of abusive language, to take the relevant person through the safe work procedures, and refer them to the training officer, was implausible in view of the likely prevalence of bad language on the floor of the Inghams’ factory.
548 To the extent that the applicant suggested in submissions that the evidence of the respondents’ witnesses was unreliable because of their fear of losing their jobs with Inghams if they gave evidence unfavourable to Inghams, this clearly did not apply to Mr Lucht who had left Inghams’ employment several years prior to the hearing.
549 Overall, I consider Mr Lucht to be a credible witness. However, I have concerns in respect of his evidence of the prevalence of abusive language among workers at Inghams and the procedures which he would follow in relevant circumstances. I consider that Mr Lucht’s evidence in respect of this issue should be treated with some caution.
Mr Levaai
550 Mr Levaai commenced working at Inghams as a process worker in April 2010 and remained employed by Inghams at all relevant times.
551 In relation to the credibility of Mr Levaai’s evidence, the applicant submitted:
He was not a reliable witness. His evidence must be treated with considerable caution.
It was obvious he could not read.
His job was extremely important to him as he was supporting his immediate family (including a disabled daughter) and sending money to his family in Samoa.
Admitting he was dry humped by Mr Waldock and Mr Collett would be a very shameful thing for him.
He drew a strange distinction about conduct occurring inside or outside the gate of the premises.
Unlike the portrayal by Mr Collett, Mr Levaai was not “quite a large gentleman” nor did his manner give rise to any concern of volatility.
552 In response, the respondents contended that:
The Applicant’s criticisms of the Respondents’ witnesses are not valid. By way of example, we submit that the suggestion that Mr Levaai’s lack of written comprehension indicates he is not a truthful witness or not of credit is offensive: Mr Levaai states clearly in his affidavit that he was shown parts of the June Ford Affidavit that detailed the Vaiyama Incident and, at [13] of the Affidavit of Vaiyama Junior Levaai affirmed on 5 July 2019 (Levaai Affidavit). He rejects the allegation and denies it occurred.
553 Mr Levaai appeared to be a quiet person and respectful of others. I consider he may have had some difficulty understanding the precise terms of questions put to him by Counsel for the applicant, and that he was challenged in comprehension of some of the legal documentation put to him in the witness box. However, and contrary to the curious submission of the applicant, this does not make him an unreliable witness.
554 An example of possible confusion on the part of Mr Levaai in relation to questions put to him at the hearing was what the applicant described as Mr Levaai’s “strange distinctions about conduct occurring inside or outside the gate.” I note the following exchange:
Now, you – I will take you to paragraph 9 and this is what you say:
I have also seen and engaged in conversations with other employees that I am friendly with that include swearing and joking but have never had conversations that are sexual and abusive.
That’s the paragraph. So I wanted to ask you about that. So it’s the part where it says you’ve engaged in conversations – friendly conversations where – sorry – that include swearing?---No.
You never have?---No.
No. Okay. So is what you’re saying here that you’ve heard other people swearing?---Yes. Yes. But outside of the workplace.
So out of the gates?---Out of the gate. Not - - -
Yes. That - - -?---Not inside.
Not inside the gates?---No.
Okay. But you have never sworn 5 yourself?---I have.
Outsider the gates?---Outside the gate.
Yes. Okay. Now, do you know what dry humping is?---Yes.
Yes. What is it?---It’s when you’re grabbing someone from the back and then you do – you know, like, sexual stuff.
Yes?---Like, you know, hump them from the back.
“Hump” means?---Like - - -
Pretend to have sex? Is that - - -?---Yes.
Yes. Okay. From the back?---From the back.
So where did you see that happen first?---I have never seen that happen at work at all.
Well, how did you know that that’s what it was?---Because they – it’s all on Facebook and medias – YouTube and that. They make funny videos like that.
Okay. All right. And as well as this bumping that you describe - - -?---Yes.
- - - have you seen employees hug each other?---I don’t remember.
No?---No.
Not inside the gates or outside the gates?---No. Not inside the gate.
(Transcript pp 1098-1099.)
555 It is apparent from this exchange that Mr Levaai was referring to swearing occurring between employees outside of the workplace, and that when Counsel for the applicant put the term “out of the gates” to Mr Levaai, Mr Levaai adopted the concept of being “inside the gates” and “outside the gates” as descriptive of the distinction between being at work and being outside of the workplace. I do not consider this to be a “strange distinction” as the applicant submitted, merely a result of Mr Levaai’s endeavour to answer the questions put to him by the applicant’s Counsel.
556 The differences in Mr Levaai’s understanding of terms, and the understanding of terms on the part of the lawyers for the applicant, was also illustrated by reference to the meaning of “backside”, which appeared to have very different connottions for Mr Levaai (namely, upper back) and Counsel for the applicant (namely buttocks).
557 I take the same view concerning the portrayed importance to Mr Levaai of his maintaining employment with Inghams, and the effect of this on his evidence, as I took with Mr Muhic’s evidence. I do not consider that Mr Levaai’s evidence was contaminated by concerns for maintaining his employment at Inghams, as submitted by the applicant.
558 I do not agree with the applicant’s submission that, because Mr Levaai agreed it would be a very shameful thing to be dry-humped and that he would not want it to be known (transcript p 1104 ll 15-21), his evidence was not reliable. Mr Collett’s evidence was that “if you knew who Ice Man [Mr Levaai] was, you would not muck around with that gentleman”, which (despite the applicant’s assertion to the contrary) I consider to be credible. I consider it likely that Mr Levaai was embarrassed by the questions put to him, or suggestions of patting or dry humping as put to him by Counsel for the applicant. However, I consider Mr Levaai to be an honest witness who answered questions to the best of his ability. I consider that his evidence in relation to the shamefulness or otherwise of conduct was merely a result of his honest answers to the questions of Counsel.
559 Overall, I consider that Mr Levaai was a witness of credit.
Mr Waldock
560 Mr Waldock worked as a process worker at Inghams at all material times from 5 January 2005, and at times as a back-up leading hand.
561 In relation to the credibility of Mr Waldock, the applicant submitted, in summary:
He was extremely evasive about “Gay Fridays”, and gave conflicting accounts about what it involved.
He denied most of the conduct in which Mr Rafferty said he had engaged.
The gesture he described as an oral sex gesture, of having hands and fingers in a tube like shape and waving the elbow backwards and forwards to the hand came in line with the shoulder, was not a sex gesture.
Mr Waldock’s account of simulated oral sex was “even less plausible in his claim that he would only make such a feeble hand gesture to people such as Wade and Michael rather than Richard because he didn’t know Richard that well… despite him working every night with Richard on overtime.”
His “eking out of concessions in evidence” undermined his credibility.
He was a witness who said the most convenient thing that came into his head, for example his backtracking in respect of whether he would touch a woman on the buttocks in the same way.
His subsequent evidence that he did not mean “betrayal of a mate who was guilty” when he sent Mr Ford a text message accusing him of “dogging” was hollow and implausible;
He kept “flip-flopping” in his evidence.
He was a witness who lacked credit.
562 Mr Waldock was terse in his replies to questions during cross-examination, although I consider this to be potentially attributable to nervousness in the witness box. However, I do not consider him to be an unresponsive witness.
563 Further, the applicant submitted that there was inconsistency between the evidence of Mr Waldock and Mr Rafferty as to the conduct in which Mr Waldock engaged, including the possibility “that Mr Waldock engaged in conduct such as poking a finger into the anus of a co-worker and that Mr Waldock hugged Richard.”
564 In his affidavit, Mr Rafferty deposed relevantly as follows:
28. Over time I also engaged in some of the conduct described in paragraph 23, in order to fit in. I engaged in the following conduct:
(a) I “dry humped” other employees (although without physically touching the other employee’s genitals or bottom, the only contact would be at chest height);
(b) I slapped other employees on the bottom;
(c) I pretended to have anal sex with other employees (without touching each other);
(d) I pretended to have oral sex / made oral sex gestures at other employees; and
(e) I hugged other employees
…
31. I mainly engaged in the conduct set out in paragraph 28 with my close friends Brendan [sic] and Wade.
565 To the extent that the applicant claimed that Mr Rafferty alleged that Mr Waldock had “poked a finger into the anus of co-workers”, this misrepresented Mr Rafferty’s evidence, which was to the effect that:
Mr Waldock would have poked Mr Rafferty “in the bum”, but not in the anus (transcript p 537 ll 9-10); and
Mr Rafferty did not recall ever seeing Mr Waldock poke anyone else, “but it may have happened” (transcript p 586 ll 8-19).
566 Mr Reidy for the applicant cross-examined Mr Waldock in respect of this alleged conduct. Mr Waldock conceded that he had engaged in conduct described in paragraph 28(b) (transcript p 616 l 45), 28(d) (transcript p 605 ll 32-35) and 28(e) (transcript p 617 ll 23-35, 618 ll 15-21) of Mr Rafferty’s affidavit, but denied that he engaged in the conduct described in paras 28(a) (transcript p 616 ll 33-34) and 28(c) (transcript p 617 ll 3-4) of Mr Rafferty’s affidavit. This was consistent with his affidavit evidence.
567 Mr Waldock made appropriate concessions in respect of conduct. I have doubts that Mr Waldock never engaged in the conduct referred to in paras 28(a) and (c), even as a joke, and even around the time when such conduct was apparently a regular occurrence. I note, however, Mr Waldock’s evidence as follows:
Mr Rafferty says that gay Fridays moved into any day of the week essentially. That’s how you read paragraph 23, didn’t you?---Yes.
Yes. And it involved a lot more than a light shove or a tap on the bottom. Do you see that?---Yes.
You were in this workplace at exactly the same time as Mr Rafferty, weren’t you?---I was in there, yes. I wasn’t necessarily in the hanging room with him every day as I could have been possibly driving forklift or another job and this was happening and I didn’t notice it got to that point.
In your period of time at Inghams you were in the hanging room reasonably regularly, weren’t you?---Yes. On and off, yes.
And this is a fair proposition, that if Mr Rafferty saw it you should have seen it, shouldn’t you?---I guess so, yes. I didn’t notice it getting to that point like he has written in there.
What point did it get to?---As I said, with the touching of the backside.
And when do you say that finished?---Probably about 10 years or so ago.
(Transcript pp 610-611.)
568 It is not implausible that Mr Waldock did not see all the conduct Mr Rafferty saw because Mr Waldock was doing other jobs away from the main body of employees (in particular, the hanging room), such as forklift driving. However, if the conduct had been as common as Mr Rafferty deposed prior to 2010 or 2011, I consider it likely Mr Waldock either saw it, or participated in it, at least in the hanging room. On balance, I prefer Mr Rafferty’s evidence. I consider Mr Waldock’s evidence in respect of simulated anal sex and dry humping should be treated with some caution.
569 Finally, the applicant sought to make much of evidence of Mr Ford in his 4 June 2018 affidavit, quoting the following text message exchange between Mr Waldock and Mr Ford on 5 September 2016:
378. I received a text message from Waldock on 5 September that indicated that he knew that I had made a complaint. The message began with the statement: “I thought we were friends”. The exchange continued as follows:
Me: Me too.
Waldock: Why am I being told that you dogging on me? (sic)
Me: Be told not to talk, sorry mate. (sic)
Waldock: OK just letting you know I never say anything about anyone at work to get them in trouble you should know that .... And if you dog me that's really sad
379. I understand the references by Waldock to “dogging” and “dog” to be references to the complaint I made about him. The statements made by Waldock are an example of the “no dabbing” culture that I experienced at lnghams…
570 These text messages were sent between Mr Ford and Mr Waldock on the same day that Mr Ford gave his written complaints to Mr Chan.
571 In summary, the applicant submitted that:
“dogging” is when one mate betrays another mate, and is specialised slang to refer to “a lowly act of telling the truth to somebody in authority with the result that the person ‘dogged on’ will get into trouble”;
Mr Waldock was aware that he was “guilty” of the conduct of which Mr Ford complained; and
Mr Waldock’s text message was illustrative of a “no dobbing” culture at Inghams.
572 In relation to the use of “dogging” by Mr Waldock, the respondents submitted that Mr Waldock’s comment that Mr Ford was “dogging” on him was evidence that Mr Waldock was upset that Mr Ford had fabricated his complaint.
573 The Oxford English Dictionary defines the word “dog” – as a verb – as follows:
c. slang (chiefly U.S., Australian, and New Zealand). A person who betrays his or her associates; an informer. Frequently in to turn (also play) dog.
574 The Macquarie Dictionary defines “dog” relevantly as follows:
6. Colloquial an informer (def. 1) as a criminal to a police officer, or a prison inmate to a prison officer.
…
12. Colloquial an informer; betrayer.
575 In my view this evidence is of little relevance to Mr Waldock’s credit. In particular, I note:
The evidence is that Mr Waldock “had heard” prior to 5 September 2016 that Mr Ford had made complaints about him. It is not in dispute that Mr Waldock sent his text messages to Mr Ford after Mr Waldock had been told by Mr Chan about the letter of complaint that Mr Ford had written and given to Mr Chan that same day. I do not accept that Mr Waldock’s comments were in some way an admission of “guilt” in respect of allegations of Mr Ford, at a time when it is unclear whether Mr Waldock was aware of the details of Mr Ford’s complaint.
The evidence before the Court is that Mr Waldock and Mr Ford were friendly at work, and friends outside of work. To the extent that Mr Ford had complained about Mr Waldock to Inghams’ management, I consider that Mr Waldock’s comments of Mr Ford having “dogged” him were made in that light – that is, a complaint made by one friend about another to “the bosses”, and a betrayal of their friendship. I do not consider that Mr Waldock’s use of the term “dog” involved the nuances urged on me by the applicant, as necessitating a finding of truth in the nature of the complaints made. The act of Mr Ford in going to Inghams management to complain about Mr Waldock, whether or not his complaints were true, was “dogging”.
I consider it likely that, in Mr Waldock’s eyes, Mr Ford had, for unknown reasons and notwithstanding their friendship, “backstabbed” Mr Waldock, in not only falsely complaining about Mr Waldock to Inghams’ management, but alleging serious matters of sexual harassment which could result in action against him by management.
Mr Waldock gave evidence that, “I understand my wording was probably not the right way to word it but I didn’t mean anything nasty by it” and that he meant to convey that he would never deliberately lie about someone to get them in trouble (transcript p 600 ll 30-42). I consider this evidence credible.
576 On balance, I consider that Mr Waldock was a responsive witness, who made many appropriate concessions during cross-examination. I also accept his evidence about his frame of mind when he sent text messages to Mr Ford on 5 September 2016. However, I have concerns about some of his evidence which I have described, because of what I consider to be his reluctance to make admissions of having previously engaged in more egregious conduct. To that extent, I consider his evidence should be treated with some caution.
Mr Mole
577 Mr Mole had been employed as a process worker by Inghams since 2012.
578 Mr Mole was clearly uncomfortable in the witness box, however I consider this not uncommon with witnesses who are unaccustomed to being in the Court room environment.
579 A considerable portion of Mr Mole’s evidence focussed on Agreed Issue 1(r) and the use of abusive language in the workplace, particularly by Mr Mole. Mr Mole gave evidence that:
there had always been joking and “mucking around” at work, but the interactions never took on a rude, sexist, homophobic or disrespectful tone;
he had used the expression “some people sucked a lot of cock” once to Mr Ford, but Mr Mole did not normally speak like this;
that was the only time he would have used that language in the workplace;
it was common for employees to swear in the workplace, but he did not swear in a manner directed at other people; and
he never used rude or racist language.
580 Mr Mole’s evidence in this regard was inconsistent with evidence I consider to be credible from a number of different witnesses. In particular, I note the following:
Mr Bhardwaj’s affidavit evidence that Mr Mole often used abusive and racist language towards him and others, including telling Mr Bhardwaj to “fuck his mother”, calling Mr Bhardwaj a “stupid Indian” and a “shit cunt”, and telling other employees to “go back to your country”.
Mr Rafferty’s affidavit evidence that had seen Mr Mole yell at Mr Ford and encouraged Mr Ford to speak up about how Mr Ford was being treated by Mr Mole.
Mr Collett’s oral evidence that Mr Mole had a bit of a “short temper” or a “short fuse”, that he had heard Mr Mole use the expression “cocksucker” in 2016 and 2017, and that Mr Mole was prone to saying things like “takes it up the arse” (transcript pp 814-815).
Mr Muhic’s oral evidence that he had heard Mr Mole use the expression “cocksucker” a few times, and that Mr Mole would sometimes use abusive language towards other workers (transcript pp 799-801).
581 Further, I note that despite Mr Mole’s assertion during cross-examination that he did not use the expressions “take it up the arse” and “suck the boss’s cock” (transcript p 637 ll 34-41), his later oral evidence during cross-examination suggested that Mr Mole did in fact use those expressions. I note, in particular, the following exchange with Counsel for the applicant:
Now, I will have to do it in case of two of them, though. In the all-male environment in 2015, 2016, the literal meaning of saying that someone is sucking someone’s cock is a man is performing oral sex on another man. That’s the literal meaning, isn’t it?---That’s the literal meaning, but not what we mean.
Right. And the literal meaning, in that all-male environment, of “taking it up the arse” is male anal sex?---Yes, if you want to put it that way. But it was not that way we were saying it.
(Transcript p 639 ll 4-11.) (Emphasis added.)
582 The picture Mr Mole tried to paint of his character and manner in the workplace is implausible in light of the evidence of other witnesses. I consider it likely that Mr Mole was embarrassed about admitting, in Court, that he had used the language he had. I also consider it likely that Mr Mole had a short temper, or “a short fuse”, as Mr Muhic deposed, and that Mr Mole used offensive language on a regular basis, including phrases like “cocksucker” and “takes it up the arse”. Finally, I consider it likely that, on occasion, Mr Mole directed racist and abusive language at other workers.
583 In relation to the matters referable to Mr Mole’s language, I give Mr Mole’s evidence no weight. Otherwise, I consider his evidence should be approached with caution.
Mr Hannett
584 Mr Hannett appeared to be a man in his 50s or 60s at the time of the hearing. He commenced working at Inghams as a process worker in 2003, and worked his way up to being a supervisor. He was confident and conservative in his appearance.
585 Mr Hannett resigned from Inghams in July 2016. At the time of the hearing, he was residing in Niue.
586 Mr Hannett gave evidence including that:
He did not know Mr Ford until Mr Ford commenced working in the Red Area at Inghams – where Mr Hannett was a supervisor – in February 2015.
His wife was the sister of Mr Flanders’ grandfather, and he socialised with Mr Flanders outside work at family functions.
He considered that Mr Ford showed motivation, so Mr Hannett moved him into machine operation and forklift driving.
He never saw or heard any of the behaviour that was alleged by Mr Ford.
He had never heard of “Gay Fridays”.
He was aware of what he considered normal “shop floor” discussions, where process workers were “happy to inform their co-workers that they were not happy with their work, for example, to tell others to hurry up”.
He had no recollection of process workers touching each other on the buttocks or engaging in behaviour with sexual connotations. He had, however, seen slapping on the back of employees by each other.
He would not have tolerated any inappropriate workplace behaviour in the factory.
He denied that he received a complaint from Mr Bhardwaj about his rostering duties, or that he had threatened to fire Mr Bhardwaj as a result of such a complaint.
He denied that he had ever punished any employee negatively for asking for a transfer from the Red Area or for raising a complaint.
He denied he was ever dry humped by Mr Waldock or Mr Rafferty.
587 The applicant submitted, in summary, that:
Mr Hannett did not have credibility.
It was impossible to accept Mr Hannett’s evidence that he had never heard of “Gay Fridays.”
Mr Hannett was part of the “power clique” and ultimately would have given the “green light” for the system or culture that was allowed to fester.
588 I consider that Mr Hannett’s evidence is of mixed credibility.
589 I find it difficult to accept that Mr Hannett had worked at Inghams since 2003, but had never heard of “Gay Fridays” while he worked there. This is particularly so given that Mr Hannett was apparently a leading hand in the Red Area at around the time that Mr Rafferty commenced working at Inghams, when Mr Rafferty said that “Gay Fridays” and the conduct associated with it (or following on from “Gay Fridays”) was rife. To the extent that there is inconsistency between the evidence of Mr Hannett and Mr Rafferty, I prefer the evidence of Mr Rafferty.
590 I also note that Mr Flanders gave evidence that he had heard of and seen some of the conduct associated with “Gay Fridays”, such as slapping buttocks (transcript p 1064 l 30), and I consider it likely that Mr Hannett would also have seen such behaviour by employees. I note, in particular, that Mr Rafferty gave evidence that Mr Hannett, who was at the time a leading hand, warned him in his first week at Inghams that he would be targeted for “Gay Fridays” because he wore nice clothes to work and did his hair before coming to work.
591 I consider it likely that Mr Hannett tolerated employees engaging in some of the behaviour that characterised “Gay Fridays”, such as buttock slapping. I also consider that employees would have been very wary about drawing Mr Hannett’s ire – notwithstanding Mr Hannett’s evidence to the effect that he would not punish an employee for complaining, I consider that he may have done so. Evidence to the effect that he disapproved of complaining conduct was given by both witnesses for the applicant (such as Mr Bhardwaj) and witnesses for the respondents (such as Mr Rafferty).
592 In my view, Mr Hannett’s evidence about what he knew of “Gay Fridays” and later associated conduct, and the language used by workers among themselves, was evasive, and not entirely frank. This was potentially due to a reluctance on his part to admit that he had failed to take appropriate action at the time, and possibly because he became desensitised to such conduct over the lengthy period of time he worked there. However, I also note Mr Rafferty’s evidence that leading hands and supervisors (including Mr Hannett) were not necessarily exposed to the more egregious conduct associated with or following on from “Gay Fridays” (transcript pp 539-540), and I consider Mr Rafferty’s evidence to this effect was credible. I consider that Mr Hannett, as supervisor, would have taken action in respect of conduct by employees under his supervision which he considered went beyond acceptable limits or standards of behaviour (as he did in respect of Mr Mole’s use of bad language in the workplace).
593 On the other hand, I consider that Mr Hannett was credible when he gave evidence that:
He had not been dry humped by Mr Rafferty and Mr Waldock. Mr Hannett appeared “old school”, conservative and confident. While he may have tolerated workers engaging in certain types of conduct towards each other, and swearing at each other, I consider it highly unlikely that he would have tolerated such conduct towards himself. This is consistent with Mr Rafferty’s evidence that Mr Hannet would likely not have been exposed to more than buttock slapping.
He gave Mr Ford favourable treatment because he considered that Mr Ford showed motivation. This is consistent with Mr Ford’s rapid promotion to more favourable duties, as well as Mr Hannett’s acceptance of Mr Ford’s complaint about Mr Mole and the resultant consequences for Mr Mole.
594 Overall I consider that Mr Hannett’s evidence should be approached with caution.
Mr Varghese
595 Mr Varghese had worked as a process worker at Inghams since June 2015. Mr Varghese was relatively young, quiet, and appeared mild mannered. From his evidence, it appeared that he tended to mind his own business, and that he had a good relationship with his co-workers at Inghams.
596 The applicant submitted that Mr Varghese’s credit was questionable because Mr Varghese became “very agitated before he was asked any questions directly related to the incident” alleged in Agreed Issue 1(q), namely that Mr Phillips rubbed his testicles on Mr Varghese’s face.
597 I do not accept that Mr Varghese lacked credibility. I consider that he was genuinely embarrassed by questions put to him during the case. I note, for example, the following questions, and evidence given by Mr Varghese during cross-examination:
Well, you might have difficulty with this. But do you remember Sax had a toolbox meeting talking about people shouldn’t poke their fingers in other people’s anus. Do you remember him telling workers that? Do you know what I mean by poking in the anus?---That - - -
Sorry. I just want to make sure - - -?---Yes.
Yes. You know what I'm referring to when I refer to the anus, don’t you?---I can’t - I don’t know.
So you know - I don't know what you refer to it as. Some people refer to it as a bum?---Okay, something like - - -
And in the middle of the bum is the anus?---Yeah, but I know that toolboxing say that there is no sexual harassment or bullying the people like that talking, but especially like you mean, you say that like a poke behind - - -
(Transcript p 992 ll 32-47.)
598 During these questions Mr Varghese appeared slightly horrified. It is perhaps unsurprising that Mr Varghese would feel uncomfortable about being asked questions he clearly felt were confronting and invasive.
599 Further, in relation to the applicant’s submission that Mr Varghese would not want to jeopardise his job, I take the same view as I expressed in relation to Mr Muhic’s evidence.
600 In my view Mr Varghese was a credible witness.
Mr Flanders
601 Mr Flanders had worked as a process worker and leading hand at Inghams since November 2003. His evidence was that, at the time of the hearing, he worked two jobs, namely at Inghams and also at Woolworths. I formed the opinion that Mr Flanders was generally hard working, although I also took the view that he would avoid trouble where possible. This was reflected in his answers to questions during cross-examination: Mr Flanders simply seemed to agree with propositions put to him by Mr Reidy on several occasions, possibly without necessarily giving them thought (see for example transcript p 1068 ll 6, 10, 14, 19, 25).
602 Although one interpretation of Mr Flanders’ oral evidence is that he was willing to make concessions, the effect of those concessions was that some of his affidavit evidence was plainly untrue (see for example transcript p 1052, ll 12-35; 1061-1063). Mr Flanders readily conceded that some of his affidavit evidence was untrue, such as in respect of his friendship with Mr Mole outside the workplace (it is relevant to compare Mr Flanders’ evidence in this respect in his affidavit at [1], with his evidence at [22] and [23] of the same affidavit and his evidence during cross-examination at transcript p 1052 ll 12-35).
603 I also considered that Mr Flanders had occasional difficulty understanding the reason for questions put to him by Counsel for the applicant. For example, when Mr Reidy encouraged Mr Flanders to agree that the event involving Mr Ogg and Mr Hill was “utterly remarkable” (transcript p 1068) Mr Flanders did not appear to follow or understand the point of the questions preceding this observation.
604 The overall impression I had of Mr Flanders’ evidence was that he knew little concerning relevant events alleged by Mr Ford. To the extent that Mr Flanders was able to comment in his oral evidence on matters of which he had knowledge – for example, in relation to the extent of “tradie mouth” in the workplace (transcript p 1055-1058) – he was credible. Indeed, I consider that Mr Flanders’ oral evidence during cross-examination was more reliable than some of his affidavit evidence. Otherwise, in light of the inconsistencies in his affidavit evidence, I consider that his evidence must be approached with some caution.
Mr Johnson
605 Mr Johnson was employed by Inghams from February 2009 to April 2017. He was employed at various times as a leading hand, training officer and acting supervisor. Mr Johnson also acted as a first aid officer and injury management officer at Inghams. From 2012, Mr Johnson worked as a training officer, but on occasions acted as a backup leading hand. From mid-2016, Mr Johnson was employed as the acting supervisor.
606 Mr Johnson gave evidence in these proceedings in an affidavit affirmed 10 July 2018 and by oral evidence.
607 Mr Johnson deposed that, in his role as a training officer at Inghams, he was responsible for providing training to workers in the red area. This included training on workplace policies and standard work procedures, including sexual harassment and bullying. Mr Johnson stated that employees received training when they commenced employment, and then follow-up training (usually every three years).
608 He deposed that he was first made aware of Mr Ford’s complaints in relation to sexual harassment in the workplace when he was informed that an investigation would take place. Annexed to Mr Johnson’s affidavit was a witness statement provided in the course of the workplace investigation.
609 Under cross-examination, Mr Johnson denied that he was in a “clique” with Mr Waldock, Mr Flanders, Mr Hannett, Mr Lucht and Mr Mole (see transcript p 860 ll 9-10). He deposed that he kept a professional relationship with others at work because he was a trainer. Mr Johnson acknowledged that he was friendly with colleagues at work, but denied the assertion of Mr Bhardwaj that Mr Johnson was part of a “friends’ group” at Inghams.
610 Mr Johnson distinguished between being friendly with people at work, and being friends. For example, Mr Johnson considered people he would see on the weekend to be friends. He noted that he got on well with everyone at Inghams, and he would not speak to certain employees more than others. He did however, acknowledge that he spoke more frequently to Mr Hannett as he was supervised by Mr Hannett, and that he developed a strong relationship with him.
611 Mr Johnson denied that he was ever informed of or knew about “Gay Fridays”. He stated that he was aware of “happy Friday” which was a bit like “Thank God it’s Friday”.
612 Mr Johnson gave evidence that his career at Inghams was going well, and that he considered himself to be a little ambitious. However, he denied that he was aiming to advance himself at Inghams, and stated that he was content with being a trainer.
613 Mr Johnson deposed that he left Inghams in April 2017 because he “wanted a change”. He denied that there was any connection between him leaving Inghams, and Mr Lucht leaving. Mr Johnson agreed that he was aware of Mr Ford’s allegations at the time he left Inghams. He acknowledged that if Mr Ford’s complaints were established he may have been in trouble for failing to carry out his responsibilities in relation to sexual harassment. He deposed that at the time of his resignation he spoke to the Union, but repeated that his reason for leaving Inghams was because he wanted a change. I note the following evidence of Mr Flanders:
So what concerns prompted you to go to the union?---I just said I wanted a change. There was so many things going on. Too many changes were happening at the same time, and I wanted to leave Inghams’.
At work?---Yes. There was too many things happening, at work, at home, too many changes, management, too many changes were happening.
What - - -?---New people were coming in.
Describe what was happening at work?---Just too many stuff, like, with production, new management, all that. And I say I wanted a change, and I was going to leave.
The new management; Mr Chan was still there?---Yes. Chan was still there.
The same plant manager was still there?---Yes. I guess. But I just wanted a change, as I said. And there was a lot - there was - there was a huge responsibility. There was a lot of things happening at the same time.
HER HONOUR: Can I just ask you, when you say you had personal things going on at home, what does that mean?---Personal things with my ex-wife, children and all that.
So you were in separation proceedings or - - -?---Yes.
- - - you were divorcing your wife or vice-visa?---Yes. Yes. Kind of, sort stuff like that.
All right?---Moving to Sydney and all that.
(Transcript p 879 ll 1-28.)
614 He also deposed that the union spoke to Inghams’ management in relation to him leaving, and then spoke to him regarding a resignation letter or documents. At the time he left Inghams, Mr Johnson stated that he was considering applying to study at university.
615 I consider this evidence to be plausible, and that Mr Johnson was a credible witness.
Mr Chan
616 Mr Chan commenced working at Inghams in 2006. He worked as a distribution supervisor from 2013 to 2015. From November 2015, Mr Chan worked as the production manager at the Murarrie production factory. During that time, he was responsible for approximately 200 employees, including employees in the Red Area. Mr Chan presented well and was a confident and articulate witness.
617 Mr Chan gave evidence in these proceedings in an affidavit affirmed on 19 July 2018 and by oral evidence. His evidence concerned the processes at Inghams, as well as the organisational structure.
618 During cross-examination, Mr Chan gave evidence concerning his role and the reporting lines at Inghams. Mr Chan gave evidence that part of his role was the management of all staff, which included disciplinary action and counselling (transcript p 772).
619 During cross-examination, Mr Chan gave evidence that he had never heard anyone at Murarrie talk about the following:
dry humping between employees in the red area;
employees engaging in acts of simulated oral sex;
employees engaging in acts of simulated anal sex;
employees poking their fingers into the anus of other employees; and
employees poking objects into the anus of other employees.
620 Mr Chan gave evidence that he first became aware of Mr Ford’s sexual harassment complaint on 5 September 2016. It was put to Mr Chan that he became aware of the complaint on 1 September 2016, when he had received an email from Ms Marie Bennett (copied to Ms Hines) advising that Mr Ford had raised a matter of sexual harassment in the Red Area with her (transcript p 776 ll 11-25). It was also put to Mr Chan that Ms Hines had visited Mr Chan on 1 September 2016, advising him that Mr Ford had made a complaint about sexual harassment. However, Mr Chan could not recall these events (transcript p 776 ll 42-45).
621 Mr Chan was asked about events of 2 September 2016, and whether he recalled Mr Ford coming in to see him and verbally advising Mr Chan of the complaint of sexual harassment. Mr Chan could not recall that conversation (transcript p 777 ll 12-15).
622 Mr Chan was taken to his affidavit where he deposed to having a conversation with Mr Ford as follows:
I recall during this conversation with Richard explaining Inghams' workplace policy dealing with inappropriate workplace behaviour and that sexual harassment allegations are serious, and would be taken seriously. I offered to Richard to take the rest of the night off and to come back on Monday to discuss the matter with me further.
623 This evidence suggested that Mr Chan was aware of Mr Ford’s complaint from at least Friday, 2 September 2016.
624 Mr Chan deposed and confirmed in his evidence that he was the initial investigator in relation to the complaint. Following receipt of the written complaint from Mr Ford on 5 September 2016, Mr Chan spoke to Mr Rafferty and Mr Waldock in relation to the complaint. Mr Chan gave evidence that he made notes of those conversations, however these notes did not appear to be part of the evidence before the Court (transcript p 789 ll 9-16; 792 ll 37-40).
625 In his affidavit, Mr Chan deposed that following a discussion with the employees listed in the complaint, he provided them with a form for documenting their version of events. After a short period of time, Mr Chan’s manager directed him to stop the investigation because human resources would be taking it over. Mr Chan deposed that he compiled the material he had collected and gave it to Inghams’ work health and safety department.
626 In response to Mr Bhardwaj’s claims of a complaint concerning rostering, Mr Chan accepted that Mr Bhardwaj had made such a complaint. Mr Chan stated that the complaint was made verbally during a disciplinary meeting with Mr Bhardwaj (transcript p 794-795, and [9] of Mr Chan’s affidavit). Mr Chan gave evidence that he told Mr Bhardwaj that he would investigate the roster, and that he discussed it with the supervisor directly after this meeting. Mr Chan deposed that he could not identify any issues arising from the roster. During cross-examination, Mr Chan agreed that he did not get back to Mr Bhardwaj in relation to his complaint.
627 The applicant submitted that Mr Chan:
Was not specifically trained for the task of the investigation.
Failed to document his investigation, including making written records of his interviews with Mr Rafferty and Mr Waldock.
Failed to protect Mr Ford and deal with prima facie victimisation by the text message from Mr Waldock.
Moved at a snail’s pace when he should have moved expeditiously.
Failed to keep Mr Ford informed.
Did not have any appreciation of the requirements of confidentiality.
628 I found Mr Chan to be a responsive and confident witness. Despite giving affidavit evidence about it, Mr Chan could not recall the day Mr Ford made his complaint. Further, Mr Chan could not recall being made aware of the nature of Mr Ford’s complaints on 1 September 2016. However, I did not find that his lack of recollection was an attempt to hide events or to use evidence to place him in a better light. I find Mr Chan to be a credible witness.
the alleged culture at inghams
629 An important part of the applicant’s case was his allegation of the existence of a culture at Inghams’ Murarrie premises, extant at the time that Mr Ford worked at Inghams, which at least endorsed, and at worst encouraged, the type of conduct alleged by Mr Ford. In particular, the applicant relied on this culture as supportive of an inference that the conduct described in Agreed Issues 1(a) to 1(r) occurred, by way of coincidence reasoning.
Submissions of the parties
630 In summary, the applicant relevantly submitted as follows in relation to the existence of an alleged culture:
The evidence of Mr Rafferty and Mr Ogg was that the conduct associated with “Gay Fridays” became more widespread throughout the Red Area, becoming a “culture”.
This culture included dry humping, simulated oral and anal sex, patting or grabbing at workers’ buttocks, pulling employees’ pants down, using genitals to touch or rub another person, poking employees in the anus, cupping other employees’ testicles or penis, and employees poking or prodding the buttocks of other employees with a finger or a pole.
The culture or system was that this behaviour was a joke or “horseplay”. It was a series of invasive sexualised acts of various severity referable to a person’s private areas.
The culture in the feather room was that if an employee worked in that room after production, or when performing overtime, they could expect any of the conduct to happen to them and there would be no redress.
Those who vocally or physically resisted or protested, such as Mr Bhardwaj, were told that they could not take a joke.
There was an expectation that employees would passively go along with the culture or system.
The culture had been “deeply ingrained” in the workplace for a number of years prior to Mr Ford commencing employment.
Important to this culture was that supervisors and leading hands allowed it to flourish.
The conduct was regular, in the realm of being rampant and entrenched.
Mr Rafferty, Mr Waldock and Mr Phillips were the key figures involved in the operation of the culture.
There is a presumption of continuance (based upon ordinary common human experience in relation to these matters and the drawing of a reasonable inference) that the culture that existed at one point in time was still in existence during Mr Ford’s employment.
631 In relation to the existence of the alleged culture at Inghams Murarrie, the respondents relevantly submitted:
Mr Story’s unambiguous evidence was that there was no culture of sexual harassment at Murarrie. That perspective is corroborated by the process workers.
The applicant’s submissions go against the vast majority of evidence before the Court.
Like other matters raised in this proceeding (such as observing patting conduct or engaging in patting, or hearing swearing in the hanging room), different employees had different experiences working in the Red Area. There was no culture of abuse, poor conduct, harassment or fear.
There was a time at Inghams when staff regularly, on a Friday, engaged in some overtly sexualised behaviour. However, by the time that Mr Ford commenced working at Inghams this conduct was in the past, but still existed in pockets. There were groups of workers who were friends and had worked together for a long time who would engage in this conduct together. It was not something that was done in a predatory way to people who clearly did not like it.
After Mr Chan started working in a supervisory role at Inghams there was a change in the culture at Inghams Murarrie.
There was nothing untoward in the behaviour of the employees at Inghams, many of whom had worked together for years and socialised outside of work. Men hugging each other or patting each other on the buttocks does not equate to a culture of rampant sexual misconduct.
632 A number of witnesses gave evidence relevant to the concept of “Gay Fridays”, and the question whether a “culture”, as alleged by Mr Ford, existed at Inghams at the time that Mr Ford worked there.
“Gay Fridays”
633 The clearest evidence explaining “Gay Fridays” was given by Mr Rafferty. Mr Rafferty deposed that, within his first week of employment at Inghams in 2008, he was exposed to “Gay Fridays”, and that he was “warned” by Mr Hannett about the prospect of being targeted by other employees on Fridays because of his appearance. Mr Rafferty deposed that, during his early employment period at Inghams, conduct which manifested on the factory floor at Inghams on Fridays included such conduct as:
kneeing people in the leg;
throwing live chickens, or dead or parts of chickens at people;
punching people in the arm;
poking, grabbing or slapping buttocks; and
rubbing bodies against each other.
634 Further evidence as to the types of activities which characterised Gay Fridays was given by Mr Phillips:
But of those names I’ve read to you, you and those other people had been there for quite a number of years before Mr Ford started in 2015?---Yes.
Now, in that time, have you ever heard of “gay Friday”?---Yes.
Did you participate in gay Friday?---No.
What was gay Friday?---It’s a bit like pants-off Friday you hear on the radio or casual Friday, just some people getting excited it’s the end of the work week, might act a little bit camp, putting on a lisp.
Act a little bit camp? What’s acting camp?---Maybe having a bit of a limp wrist or skip around.
Okay. And did it ever involve touching another worker?---Not that I witnessed.
And nothing you did involved touching another worker?---No.
And when I asked that question, that’s on the assumption that you participated in gay Friday?---No.
You never? You didn’t participate in gay Friday?---No.
How long did it go on for?---It was very sporadic and it wasn’t that long at all. It wasn’t like every Friday for an extended period of time. Just now and then, I would hear the phrase pop up on a Friday.
Well, who would announce it?---I can’t remember any specific time. So I have – I do recall Rafferty speaking with a lisp and doing that sort of stuff on the occasional Friday, but - - -
So when you say Rafferty, that’s Michael Rafferty?---Yes.
And when you say speaking with a lisp, is that mimicking how someone might perceive a gay person is speaking?---Correct.
Now, did the conduct ever include dry humping?---No.
(Transcript pp 675-676.)
635 I note that Mr Waldock gave another version of Gay Fridays which involved:
54. …a joke that process workers had around 8 to 10 years ago, which would start as a “pass it on” situation someone from the back of the line would lightly push the person next to them and it would continue on to the next person sometimes it would be a light tap on the backside. This lasted around a year and then faded away…
(Affidavit of Brenden Waldock affirmed 5 July 2018.)
636 The precise nature of conduct which characterised Gay Fridays, and when it ceased as a regular occurrence, were not consistently described by witnesses. However, it does not appear to be contentious that regular “Gay Fridays”, occurring on Fridays, were a thing of the past at Inghams by the time that Mr Ford commenced working there. The evidence before the Court is that Gay Fridays had ceased by “a very long time ago”, about “eight to ten years ago”, or “long before 2015” (see for example transcript p 462 ll 4-5; 610; 1073). I note that this was the evidence of a number of witnesses who had worked at Inghams for a long period of time, including Mr Rafferty, Mr Waldock, Mr Flanders and Mr Ogg. It was also the evidence of Mr Ford insofar as he had knowledge of this (see for example evidence of Mr Ford at transcript p 386 ll 33-38).
637 I consider it likely that Gay Fridays had ceased to be a regular occurrence at Inghams by the end of 2009.
The “evolution” of Gay Fridays
638 The case of the applicant is that conduct associated with Gay Fridays became more widespread, occurring not only on Fridays, and was rampant at the time that Mr Ford worked at Inghams. As Mr Ford said during cross-examination:
You had heard stories about things that had happened at Inghams years ago?---I had, yes.
And you told your wife that there was a thing that used to happen at Inghams called gay Fridays?---Correct. Yes.
And you told her that when you had just started working at Inghams?---I don’t recall the time.
Okay. When you told her that gay Fridays was something that used to happen at Inghams, you were talking about something that you had heard about that had happened in the past, weren’t you?---Yes.
Okay. Gay Fridays was no longer a thing when you started working at Inghams?---Every day was a gay day.
Okay. So why did you tell your wife that there used to be something called gay Fridays?---Because gay Friday was in the past. When I was there, every day was a gay day.
(Transcript p 386 ll 20-38.)
639 Mr Ford had heard of events in the past referable to Gay Fridays, and knew of the types of conduct that had occurred in the past. Indeed, Mr Ford knew that Mr Rafferty had been the subject of behaviour apparently akin to that of which Mr Ford complained, because Mr Ford gave evidence that they had discussed it (transcript p 250 ll 22-35).
640 The evidence of Mr Ogg, Mr Bhardwaj and Mr Ly supported the existence of this culture as alleged by Mr Ford.
641 Mr Rafferty also gave evidence concerning conduct that occurred at Inghams on a regular basis (and not just on Gay Fridays). In particular, in his affidavit sworn 7 July 2018, Mr Rafferty described:
employees dry-humping each other (although without physically touching each other below the waist area);
employees simulating oral and anal sex with each other (although without physically touching each other);
employees patting or grabbing at other employees’ buttocks;
employees pulling other employees’ pants down; and
employees poking or prodding other employees’ buttocks with their fingers or metal poles.
642 Mr Rafferty deposed that he witnessed this conduct occurring on the afternoon or night shift in the Red Area. He further gave evidence in the following terms during cross-examination (following questions in relation to the first time he was subjected to dry humping and simulated anal and oral sex at Inghams):
And so you thought this was a normal thing?---I didn’t think it was normal, but the situation of the – where we worked, with the slaughter of chickens, I didn’t take that as normal either.
Well, I’m having difficulty seeing the connection, Mr Rafferty. Did then - - -
HER HONOUR: Sorry, can I ask what do you mean by that?---That it was a very hard job to deal with because it was a horrible job, having to do that with chickens, and people would do things to try and take their mind off it. So some people did things a bit over-the-top to try and push the mindset away that you’re killing chickens all day. It was a horrible job.
So it was distracting?---Yes.
Releasing tension?---Maybe, yes.
Perhaps distracting is a better description?---Sorry?
Distracting?---Distracting, yes.
Take your mind off what’s going on?---Yes, and I think people would do things like that to – they would do anything to distract their mindset from the horrible job that we had to do. It was horrible. Yes, I still think, “How did I do that job?” Like – yes, so it was a distraction.
Would it be fair to say people go over the top because they’re trying to take their mind off it?---Yes. So as – and a lot of this mainly happened when I started in the hanging room, where you’re slamming poor little chickens into shackles, and that’s where a lot of this happened, because people were trying to take their mindset off what they’re doing. Yes.
(Transcript pp 517-518.)
643 Mr Rafferty then gave evidence that he could not recall relevant conduct occurring in the feather room, although he could recall it occurring in the hanging room (for example, employees’ pants being pulled down, and simulated anal sex). The following exchange then occurred:
HER HONOUR: Can I just ask why did you say no to the feather room? You seem quite certain about that. Why would that be?---Because I don’t remember it happening in the feather room. Yes.
Okay. Thanks?---Yes. If I – if it – if it happened in the hanging room – if it happened in the feather room, I would be more than happy to say that it happened there, because I seen it happen in the hanging room, so why would I not say that it happened in the feather room. I - - -
MR REIDY: Well, the reason you would say it wouldn’t happen in the feather room is because you know all of Richard’s allegations pretty well are about things that occurred in the feather room?---Mmm.
So that’s why you’re not saying it, isn’t it? You know that. You know the allegations are about the feather room?
MS REECE: Well, your Honour, they’re also about the locker room. It’s not true to say that they’re all about the feather room, and in fact, in Richard’s evidence, there was an allegation that something happened in the hanging room.
(Transcript p 522 ll 17-35.)
644 I note that conduct Mr Phillips deposed he had observed during his employment at Inghams appeared to have been in a narrower range than conduct to which Mr Rafferty deposed.
645 I further note the following cross-examination of Mr Waldock:
Mr Rafferty says that gay Fridays moved into any day of the week essentially.
That’s how you read paragraph 23, didn’t you?---Yes.
Yes. And it involved a lot more than a light shove or a tap on the bottom. Do you see that?---Yes.
You were in this workplace at exactly the same time as Mr Rafferty, weren’t you?---I was in there, yes. I wasn’t necessarily in the hanging room with him every day as I could have been possibly driving forklift or another job and this was happening and I didn’t notice it got to that point.
In your period of time at Inghams you were in the hanging room reasonably regularly, weren’t you?---Yes. On and off, yes.
And this is a fair proposition, that if Mr Rafferty saw it you should have seen it, shouldn’t you?---I guess so, yes. I didn’t notice it getting to that point like he has written in there.
What point did it get to?---As I said, with the touching of the backside.
And when do you say that finished?---Probably about 10 years or so ago.
(Transcript pp 610-611.)
646 Although the evidence of the witnesses is, again, inconsistent, I am satisfied that, after Gay Fridays had waned as a regular occurrence at Inghams, nonetheless egregious conduct persisted. At the very least, and notwithstanding the evidence of Mr Phillips and Mr Waldock, I am satisfied that this conduct persisted in the form described by Mr Rafferty. I prefer Mr Rafferty’s evidence as the most reliable description of this conduct.
647 The key question is – assuming that such egregious conduct persisted after 2009, and was widespread among employees at Inghams in the Red Area, such that it could be said that a “culture” of such conduct existed from that time, did that culture persist from 2009 into the period that Mr Ford worked at Inghams?
Was there a culture of egregious conduct at Inghams at the time that Mr Ford worked there?
648 I do not accept the submission of the applicant that there is necessarily “a presumption of continuance based upon ordinary common human experience in relation to such matters”, that if the types of conduct alleged by Mr Ford had existed at one time at Inghams, they would have continued to exist at the time that Mr Ford worked there. This submission does not take account of changes at the Inghams’ workplace, in particular turnover of staff (and the departure of long-standing workers who may have been part of that culture).
649 First, Mr Rafferty gave evidence that the types of behaviours that followed on from Gay Fridays (and constituted the “culture”) “died off a lot” with the turnover of staff at Inghams Murarrie, and the broadening of the multicultural base of workers at Inghams. I note the following evidence of Mr Rafferty during the hearing:
…When the halal got employed at Inghams, they were a very religious group of people, it happened less and less with these Halal workers around. Also, once Glenn left, we had Saxen take over, and also when Mark Chan got employed, Mark Chan was very professional in his job in comparison with Glenn, so things started to run a lot better. Yes.
All right. Do you remember when the halal certification or when the halal workers started working at Inghams?---Probably mid-employment. By mid-employment maybe. I can’t answer that because I don’t know exact dates.
That’s all right?---Yes.
You were asked in your evidence earlier today about gay Fridays?---Yes.
And about some conduct you described in your affidavit both about gay Fridays and conduct which you said extended beyond Fridays?---Yes.
And you were asked if everyone engaged in it?---Yes.
And you said, “When I started, yes”?---Yes. Most people.
And how long did you work at Inghams altogether?---Eight years I think.
So when you are talking about - - -?---Seven and a half.
Sorry?---Seven and a half or eight. Sorry, I can’t - - -
So when you started when was that in time?---I was 21. It’s in the – sorry. I can’t remember.
That’s all right. By the time you left Inghams was everyone still engaging in that kind of conduct?---No.
How did things change?---It was more just small groups. It was more that the staff that had been there since the start would still engage in it, so – but not often. It was just like – they were more the staff that had been there since I started or back when the gay Fridays still happened. And there wasn’t as many of those staff around. And also the Koreans, they would get involved, they would slap you on the bum.
All right?---Yes.
And when you say “still engage in it” and I’m talking to you about the time when you left Inghams or shortly before, what do you mean by “it”, “still engage it”; what kind of conduct are you talking about?---Just like slapping of bums.
Slapping of bums?---Yes. Towards the very end the simulated sex acts and that stuff wasn’t common.
And when you say “towards the end” are you able to put a timeframe on that?---The last year and a half, two years maybe. I can’t remember. It just – yes. Around about when Mark Chan started.
(Transcript pp 592-593.)
650 In my view this evidence is credible. Mr Rafferty commenced working at Inghams in 2008. His evidence that conduct was engaged in less by his mid-employment at Inghams (around 2012) is consistent with the later period during which a number of workers who gave evidence commenced, such as Mr Muhic (March 2012), Mr Okoro (October 2014), Mr Dhanoa (November 2014), Mr Varghese (June 2015) and Mr Rahiwi (June 2014). All of these witnesses gave evidence that they had never experienced the type of conduct alleged by Mr Ford, and/or they would not tolerate it.
651 Second, I consider that conduct that was associated with, or followed on from, Gay Fridays would have been significantly discouraged by events concerning Mr Kahu Ogg and Mr Jordan Hill in August 2014, when Mr Hill poked Mr Ogg in the buttocks with a steel rod at the Inghams premises. In particular, I note that Mr Ogg complained to Inghams’ management in respect of the conduct of Mr Hill, and that Mr Hill received a final written warning in respect of that conduct (see First Ogg Affidavit at [10]). To the extent that workers were engaging in such conduct in 2014 (as Mr Hill clearly was), I consider it likely that other workers would have been aware of the consequences to Mr Hill, namely the disciplinary measures taken by Inghams, and been deterred from similar conduct in the workplace.
652 That the disciplinary measures taken by Inghams may have had an effect on the conduct of workers at Inghams is consistent with Mr Ogg’s evidence that “nothing of this nature” happened again to him following this incident in 2014 (transcript pp 448 ll 27-30).
653 The evidence that Inghams took workplace complaints or infractions seriously, and disciplined workers who acted inappropriately or wrongly (as exemplified by such instances as Mr Hill poking Mr Ogg with a stick, and also Mr Mole swearing, Mr Collett smoking, Mr Ford failing to lock out the trucks, and Mr Bhardwaj wearing headphones at work) is inconsistent with the persistence of a culture where the sexual harassment alleged by Mr Ford would have been tolerated.
654 Third, the evidence of Mr Ly, Mr Ogg, and Mr Bhardwaj supporting the contention that the culture (and associated conduct) persisted, was generally unparticularised as to dates, and to the extent that these witnesses could give dates during cross-examination many pre-dated 2015.
655 So, for example, during cross-examination, Mr Ly gave evidence that:
Mr Waldock, Mr Rafferty and Mr Mole engaged in forcing their fingers into the anuses of other employees “before 2015” (transcript p 477 ll 37-46).
Mr Waldock, Mr Rafferty and Mr Mole grabbed the genitals of other employees in 2014, and he was unable to confirm that this conduct had occurred later (transcript p 478 ll 7-13).
656 Immediately following this evidence, the cross-examination of Mr Ly continued as follows:
Sure. I’m just interested in the time-frames, and if you can’t say – that’s fine. Paragraph 6C – you say that Michael Rafferty, George Mole and Brendan [sic] Waldock rubbed their genitals against another staff member?---You’re suggesting that happened?
Well, I’m asking you when that happened?---When; sorry. I can’t give you a date.
Are you able to say whether it was before or after 2015?---No. I cannot.
When you talk about inappropriately hugging another staff member, Mr Ly – what do you mean by that? That’s at paragraph 6D of what you’ve just been looking at?---Hugging another member by grabbing him and rubbing their genitals against him and dry-humping. That’s inappropriate.
Okay. And when do you say that occurred?---When I worked on the afternoon shift.
And – sorry; what was your evidence about when you worked on the afternoon shift? Was it from 2014?---Yes.
Sorry, your Honour; if I could just have a moment - - -
HER HONOUR: Yes.
MS REECE: Mr Ly, I suggest to you that neither of those two things we’ve just been talking about – paragraph C and paragraph D – were things which happened in 2015 and ’16 by those men?---I disagree.
(Transcript p 478 ll 17-42.)
657 Similarly, Mr Ogg gave evidence that:
Mr Waldock and Mr Rafferty cupped the testicles of Mr Ogg “from 2009 to, maybe, 2015, up to then” (transcript p 461 ll 29-32).
Mr Phillips “brought his genitals near to the faces of his co-workers” in “2012 to 2014; may be [sic] in that time-frame” (transcript p 462 ll 32-40).
Mr Phillips “brought his genitals close to Bijo Varghese’s face” “somewhere between 2009 and 2014” (transcript p 462 ll 42-44).
658 In conclusion, I am satisfied that, if there had been a culture in the Red Area of Inghams Murarrie involving the types of conduct to which Mr Rafferty deposed, and which Mr Ford alleged, that culture had ceased by the time that Mr Ford commenced working at Inghams.
659 I now turn to consideration of Agreed Issues 1(a) to 1(r).
AGREED issue 1(a): whether The Second Respondent or the Third Respondent engaged in the conduct of patting or slapping or suggestively rubbing Mr Ford’s buttocks in the period from August 2015 to about September 2016, usually in the feather room and sometimes in the locker room, as alleged in paragraph 15 of RFASOC.
660 This issue is referable to paras 14(a) and 15 to 17 of the RFASOC, which provide:
14. From about August March April 2015, Rafferty and Waldock engaged in the following sexual harassment conduct, particulars of which are in the following paragraphs of this Statement of Claim:
(a) initially, commencing in about March April 2015, it involved Rafferty and Waldock touching and patting and rubbing Mr Ford’s buttocks, with this conduct occurring frequently and regularly during the remainder of the material time;
…
15. From about August March April 2015, Rafferty and Waldock patted, slapped or suggestively rubbed Mr Ford’s buttocks (the “conduct”):
Particulars
(a) The conduct commenced when Waldock patted Mr Ford on the buttocks in the feather room.
(b) The conduct would usually occur in the feather room and sometimes occurred in the locker room.
(c) The conduct occurred at least three to four times each week throughout the remainder of the material time.
(d) Rafferty and Waldock engaged in the conduct individually and jointly.
(e) For conduct engaged in jointly, Rafferty and Waldock engaged in the conduct at the same time.
(f) Both Rafferty and Waldock engaged in patting, slapping and suggestive rubbing of Mr Ford’s buttocks on many, various and regular occasions.
(g) The suggestive rubbing consisted of slow and lingering rubbing of Mr Ford’s buttocks
16. Mr Ford:
(a) Did not solicit the conduct pleaded in paragraph 15 above;
(b) Communicated to Rafferty and Waldock that the conduct was unwelcome by:
(i) telling them to piss off;
(ii) telling them they were crazy;
(iii) asking them how they thought they could get away with the conduct;
(iv) making the statements in (i) to (iii) in an upset and angry voice;
(v) shaking his head at them.
17. The conduct of Rafferty and Waldock pleaded at paragraph 15 above caused Mr Ford to feel anxious, humiliated, disgusted, offended, intimidated and, over time, increasingly introverted and isolated.
(Tracked changes in original.)
661 In the defence of the first and third to fifth respondents, the third respondent denied paras 14(a) and 15 to 17 of the RFASOC, with the exception of para 16(a), which was neither admitted nor denied. The amended defence relevantly stated:
[14](a) … that any intentional physical contact with the Applicant’s buttocks did not constitute sexual harassment and was only for other purposes including getting the Applicant’s attention in noisy areas;
…
15. … that on occasion there was physical contact of another employee for the purpose of getting the employee’s attention given the level of noise in parts of the First Respondent’s premises, including the feather room. Employees have been patted on the backside by co-workers, in circumstances which could not reasonably be considered “suggestive” as alleged.
662 The second respondent also denied paras 14(a) and 15 to 17 of the RFASOC insofar as the conduct related to him and relevantly stated:
[14](a) … he did slap the Applicant’s (clothed) buttocks on one occasion during the period they worked together;
…
[15](a) on one occasion he slapped the Applicant on his (clothed) buttocks; and
[15](b) the action occurred on only one occasion, and not three to four times each week as alleged. Further, the action was a “slap” and not a “slow and lingering rubbing” as alleged.
Evidence of the applicant
Mr Ford
663 Mr Ford deposed, in summary, in his affidavit originally sworn on 4 June 2018 (which was later amended and re-filed in a redacted form on 24 and 25 July 2019), at [104], [108] and [116]-[141] that:
He noticed early on in his employment that co-workers would touch and rub each other’s buttocks. He saw this conduct happen in the hanging room and the feather room.
He mainly saw Mr Waldock engaging in this conduct, but Mr Rafferty and occasionally Mr Phillips would also engage in the conduct.
He saw them touch and rub Mr Muhic on the buttocks.
He asked Mr Waldock why people were doing this and Mr Waldock informed him that “we have ‘Gay Fridays’”, meaning that on Fridays the workers would engage in dry humping and touching each other on the buttocks.
The buttock patting conduct by Mr Rafferty and Mr Waldock commenced in about March 2015 and escalated from April 2015 the more Mr Ford worked with, and got to know, Mr Rafferty and Mr Waldock.
The conduct happened at least three to four times per week, and sometimes on a daily basis. It usually occurred in the feather room when Mr Ford stayed back after production and hanging to help clean in the feather room, or when he was on relief duties in the feather room, or when he was permanently rostered in the feather room, or when doing overtime in the feather room.
Only he and Mr Rafferty and Mr Waldock would be in the feather room during overtime.
The conduct also occurred in the locker room. It would happen at the start of shifts, or on a break, or when Mr Rafferty and Mr Waldock were going to speak to someone whose locker was close to Mr Ford’s. It would also happen when Mr Ford was bent over his bag, retrieving belongings from it.
There were usually fewer people around in the locker room.
Mr Rafferty and Mr Waldock engaged in the conduct openly. The behaviour happened both when Mr Ford was alone with Mr Rafferty and/or Mr Waldock and in front of other workers.
When in the feather room he would bend over and pick up items off the floor frequently. While he was bent over, Mr Rafferty and Mr Waldock would come up from behind and touch his buttocks.
Mr Rafferty and Mr Waldock would walk past him on the platform in the feather room and pat or rub him on the buttocks for no reason.
When he was replacing plucker fingers, either after production had finished or during overtime, his hands would be occupied. While his hands were occupied, Mr Rafferty and Mr Waldock would come up behind him and pat or rub him on the buttocks.
Touching another employee’s buttocks was not the usual way of getting that employee’s attention in the noisy environment. Rather, employees would tap each other on the shoulder or back, or stand in front of a worker to get their attention.
The buttock patting conduct escalated after a few weeks into buttock rubbing and slaps that were quite hard and caused a small amount of temporary pain.
The buttock rubbing conduct was sexually suggestive because it was done slowly, with the perpetrator taking their time. The conduct lasted anywhere between two to three seconds, and the position of the perpetrator’s body and crotch was close to Mr Ford when the conduct occurred.
The buttock rubbing conduct happened at least once per month.
There were times when Mr Rafferty and Mr Waldock would together rub Mr Ford’s buttocks, as well as times when they did it individually.
Mr Ford would tell Mr Rafferty and Mr Waldock to “piss off”, that they were “crazy”, or said words to the effect of “how did they think they could get away with doing it”, when they engaged in the buttock rubbing conduct. Nonetheless, they continued to do it.
It was only when Mr Ford became more aggressive and told Mr Rafferty and Mr Waldock to “fuck off” that they would stop their conduct, seeming surprised by his reaction.
Mr Ford felt humiliated and disgusted by the conduct of Mr Rafferty and Mr Ford, and it got to the point where he was scared and intimidated by their conduct.
664 I note that the respondents objected to the following evidence of Mr Ford:
In relation to first noticing the touching and rubbing of co-worker’s buttocks – the objection being on the basis that the evidence was unfairly prejudicial and misleading, as well as frivolous and vexatious.
Mr Waldock informing Mr Ford of Gay Fridays – the objection being on the basis of hearsay, and being unfairly prejudicial and misleading.
Touching another employee’s buttocks was not the usual way of getting that employee’s attention – the objection being on the basis of opinion evidence, unfairly prejudicial, and/or misleading.
The buttocks rubbing conduct was sexually suggestive because of the way it was done taking time – the objection being on the basis of opinion evidence, unfairly prejudicial, and/or misleading.
665 In my view Mr Ford’s evidence is admissible for the following reasons:
Pursuant to s 78 of the Evidence Act, Mr Ford’s evidence as to his opinion of what was usual in the workplace was based on what he claimed to see, hear or otherwise perceive about the workplace at Inghams.
Similarly, Mr Ford’s evidence as to the alleged manner of rubbing was his perception of that conduct.
The evidence is not unfairly prejudicial to the respondents or misleading to the Court.
The fact that the evidence is admissible does not mean that it is established.
The respondents have had ample opportunity to meet it in their own evidence and submissions.
Mr Bhardwaj
666 Mr Bhardwaj gave evidence in a number of affidavits and orally at the hearing. His evidence in the First Bhardwaj Affidavit was as follows:
That he witnessed Mr Rafferty, Mr Waldock and Mr Phillips touch and pat Mr Ford on the buttocks. It happened constantly. They would do and say unprofessional things to Mr Ford almost every single shift in the feather room.
Mr Rafferty and Mr Waldock also directed this conduct at Mr Bhardwaj on most shifts when he worked in the feather room.
Mr Ford would complain to Mr Bhardwaj about the conduct (among other alleged conduct) and say that it bothered and upset him.
Mr Bhardwaj left Inghams because of treatment by other workers which he regarded as sexual harassment, and because nothing was done about complaints he had made.
Mr Ogg
667 Mr Ogg relevantly deposed in the First Ogg Affidavit:
That he had seen employees engage in sexual behaviour, including slapping each other on the buttocks.
Mr Ford had spoken to Mr Ogg on many occasions about “their [Mr Waldock, Mr Rafferty and Mr Phillips] behaviour”.
In September 2016, Mr Ford spoke to Mr Ogg alleging that Mr Ford was being sexually assaulted.
While working at Inghams, he had been smacked on the buttocks.
At least 3 times per week Mr Waldock had patted him on the buttocks while he was working and asked him to “pass it on” and continued to pat him on the buttocks until he “passed it on”. It used to happen every day and on every Friday as part of Gay Fridays.
668 In the Third Ogg Affidavit, Mr Ogg relevantly deposed:
Mr Rafferty and Mr Waldock would slap Mr Ford on the buttocks about once per week. Mr Phillips did so occasionally (about once per month).
Mr Hannett, Mr Lucht, and Mr Johnson had watched workers in the Red Area pat each other on the buttocks.
Mr Ly
669 Mr Ly relevantly deposed in the First Ly Affidavit:
He had seen Mr Waldock, Mr Rafferty and Mr Mole often engage in sexual behaviour with other employees.
He had seen Mr Rafferty and Mr Waldock engage in (inter alia) touching Mr Ford’s buttocks.
He had experienced similar behaviour to Mr Ford, including being touched and slapped on the buttocks, by Mr Rafferty and Mr Waldock. He did not like this conduct and “kept telling them to stop”.
Most of the “boys at work” took it as a joke, but he could see that it upset Mr Ford.
Although there were cameras in the processing areas, the cameras were positioned for the reason of monitoring the treatment of the birds, not to monitor the conduct of the workers.
670 In the Third Ly Affidavit, Mr Ly relevantly deposed:
Mr Muhic had slapped him on the buttocks on many occasions. He had told Mr Muhic that he did not like this behaviour.
Mr Waldock and Mr Rafferty touched Mr Ford on the buttocks on many occasions.
The behaviour towards him sometimes happened in the hanging room, but most of the time the behaviour happened in the feather room when he was helping to clean after he had finished hanging.
Evidence of the respondents
Mr Rafferty
671 In his affidavit sworn 7 July 2018, Mr Rafferty relevantly deposed:
From early in his employment, he saw employees on a regular basis engage in conduct associated with, or that followed on from, Gay Fridays, including patting or grabbing at other employees’ buttocks.
This conduct was engaged in on a regular basis by employees working on the afternoon or night shift in the Red Area.
Over time he became used to such conduct and engaged in some of the conduct associated with, or following on from, Gay Fridays, including slapping other employees on the buttocks.
The conduct occurred in a joking and consensual manner.
He mainly engaged in such conduct in the first few years of his employment when he worked in the hanging room, and before Mr Ford commenced his employment at Inghams.
He did not engage in the conduct associated with, or that followed on from, Gay Fridays after 2010 or 2011. He would then mainly have engaged in such conduct with his close friends, Mr Waldock and Mr Phillips, and would sometimes engage in such conduct with other employees, “but only if they had done the same sort of thing to me first”.
There was one occasion early in Mr Ford’s employment when Mr Rafferty playfully slapped Mr Ford on the buttocks in the feather room, as it was a common practice to get someone’s attention, but Mr Ford asked him not to do it again.
He had immediately apologised to Mr Ford for having slapped Mr Ford on the buttocks, and did not slap, pat or touch Mr Ford’s buttocks ever again.
Mr Ford had conversations with him where Mr Ford would be “commenting on something that had happened to him during the day which he didn’t like” and he would share his similar experiences by way of a response.
He had many conversations with Mr Ford about the bullying and verbal abuse he had experienced at Inghams, but he never knew that Mr Ford thought he was being sexually harassed or subjected to conduct he thought was of a sexual nature.
Mr Bhardwaj had slapped him on the buttocks on several occasions and it is likely that he did the same to Mr Bhardwaj on a few occasions.
Mr Collett
672 In his affidavit affirmed 6 July 2018, Mr Collett relevantly deposed:
He had never seen or heard of any behaviour at Inghams that could be described as sexual harassment, discrimination or bullying, but had observed offensive behaviour and swearing from Mr Bhardwaj and Mr Parenko.
He had been friendly with Mr Ford at work, however at no point in their working relationship had Mr Ford indicated to Mr Collett that Mr Ford was experiencing any inappropriate behaviour or other difficulties at work.
He had worked with both Mr Ford and Mr Rafferty often, and never witnessed any sexual harassment.
Mr Waldock
673 In his affidavit affirmed 5 July 2018, Mr Waldock relevantly deposed:
He did not speak with Mr Ford about Gay Fridays.
He understood Gay Fridays was a joke that process workers had around 8-10 years before, which would start as a “pass it on” situation, where someone from the back of the line would lightly push the person next to them and it would continue on, sometimes being a light tap on the buttocks. This lasted around a year and then faded away.
He was first informed of the allegations about him and other workers by Mr Ford in September 2016.
He was surprised at Mr Ford’s complaint as he and Mr Ford were very friendly, Mr Ford having messaged him to wish him “Happy Father’s Day” the day prior to him finding out about the complaint.
He had never observed the kind of behaviour alleged by Mr Ford occurring at Inghams.
He recalled occasions where he and other employees would pat each other on the buttocks, but denied there was sexual motivation or that it could be interpreted as sexual.
It was his experience that workers would talk directly into another worker’s ear, or tap their shoulder or upper back or buttocks to get their attention in noisy areas.
Contrary to the allegations of Mr Ford, he had never rubbed or patted Mr Ford’s buttocks while Mr Ford’s hands were occupied changing the plucker fingers, or while Mr Ford was removing feathers, or to greet him at the start of any shift, or when Mr Ford was bent over retrieving belongings from his bag.
He denied the allegation of Mr Ford that he had ever touched or rubbed Mr Muhic on the buttocks.
674 During cross-examination, Mr Waldock gave evidence that, in more recent years, some workers slapped each other on the buttocks in a “sportsmanlike” fashion. I note, in particular, as follows:
But in your affidavit, Mr Waldock, you say that touching of the backside continues?--- In the gay Friday sense I was talking about in that paragraph.
Well, how is touching of the backside in recent times, 2015, 2016, not in the gay Friday sense. Can you explain that?---It more turned into, like, a sportsmanship kind of tab on the butt so – backside to say a good job, or that kind of stuff.
Sportsmanship – can you explain that?---I just did, in the way of saying good job or that kind of situation.
Well, I’m struggling with the concept of touching someone’s backside being sportsmanship. Could you help me understand that, please?---In the way of, like, if you watch football, same sort of thing they do – if someone gets the try, they will tap each other on the backside.
So is this where you get that conduct from?---Yes.
Footballers?---Yes.
There – so this is what’s going on in the place. You’re all footballers in there - - -?---No.
- - - tapping each other on the - - -?---No. We just used it in that sort of sense.
Yes. You see, Mr Waldock, that is contrary to what you say in your affidavit about tapping on the backside, isn’t it?---No.
Go to paragraph 57 and read that?---It’s – yes. It’s just – yes, to tap – tap each other on the backside to get attention in loud areas. Yes.
Well, that’s different to sportsmanship and job well done, isn’t it?---Yes. It was – that was just a – one way we would do it. It was – we used to tap each other on the backside for various reasons.
Well, that’s not what you just said. You said it was sportsmanship?---That was one reason we would use it.
But that was the reason you gave that it was different to gay Friday?---Yes.
Mr Waldock, is it acceptable behaviour to touch another man on the bottom, in your view?---In the way I was doing it, yes, I believe so, but some – obviously some people didn’t.
In the way you were doing it – so you would do it to how many people in the workplace?---I don’t know. I didn’t – just possibly a majority of them.
Including Richard Ford?---Yes.
And you would do it any time on a shift that you thought it was appropriate to do so?---Yes.
And never once – never once – in Richard Ford’s case did you ask him whether you could do it?---No. I didn’t. He never told me that I – that I shouldn’t, though.
So, is this the way you operate: you put your hand on someone’s bottom, slap their bottom, but you don’t need to ask, because that’s the way you operate at Inghams’?---I guess, yes, it’s the way we did operate.
No. I’m asking about you, Mr Waldock, not “we”?---That’s the way I did operate. Yes.
Yes. So, you don’t need permission to do that, in your view, and it’s acceptable, in your view?---At the time, yes, I thought it was.
Well, why is it not acceptable now?---Because obviously Richard didn’t appreciate it, but he never told me he didn’t until I noticed – I was told about the sexual harassment claims against me.
But is it still otherwise acceptable to Inghams’? The only thing that makes it unacceptable – that Richard has brought sexual harassment proceedings? Is that the only thing that makes it unacceptable?---I guess it – I don’t know. I just wasn’t thinking at the time.
Well, would you touch a woman on the bottom in the same way?---No.
Why not?---If they were working with us at the time, I probably would have, but - - -
You would have? You claim to have been trained in Inghams’ sexual harassment policies. You know that’s in your affidavit?---Yes.
And you yourself were a trainer - - -?---Yes.
- - - teaching people these things?---Yes.
And you are giving evidence to this court, Mr Waldock, that if a woman were in that room, you would have no trouble slapping or patting her on the bottom?---No. That’s not what I said.
Well, what would you have no trouble doing with a woman?---I guess I would probably ask permission to do it to a woman first.
Well, why not ask permission from a man?---Because I didn’t think it was classed as sexual harassment.
And you still don’t think it is, do you?---Yes. I do now.
Why, because Inghams’ has told you it is?---No, because of just – don’t know how to answer that question. Sorry.
See, the thing is, in relation to your affidavit about getting people’s attention, Mr Waldock, you didn’t have to touch them on the bottom, did you? As you say in your affidavit, you could have tapped them on the shoulder?---Could have, yes.
Perfectly acceptable way to do it, isn’t it?---Yes.
Doesn’t interfere with anyone’s privacy, does it?---No.
You could talk to them in their ear, as you say in your affidavit?---Yes.
Perfectly acceptable way to do it, isn’t it?---Yes.
Doesn’t interfere with their privacy, does it?---No.
And what you were doing when you were touching people on the bottom was you were continuing the spirit of gay Friday, weren’t you?---I didn’t see it as that. No.
Well, that’s what, according to you, was the only gay thing that happened on gay Friday?---Yes.
And it kept going?---Yes. But it turned into more of like a – to get someone’s attention to say a good job, sort of thing.
There was same amount of noise in the factory in the whole period you worked there?---Yes.
So the disappearance of gay Friday, Mr Waldock – the disappearance of gay Friday – didn’t make any change to the way you needed to get the attention of a worker, did it?---No.
So that answer is just nonsense, isn’t it?---Yes.
(Transcript p 611-613.)
Mr Mole
675 In his affidavit affirmed 5 July 2018, Mr Mole relevantly deposed that he recalled that workers who were friendly with one another would, on occasion, pat each other on the buttocks (typically after a shift) in a manner akin to people playing sports.
676 During cross-examination, Mr Mole also gave the following relevant evidence:
Now, you give some evidence about bottom patting in the workplace?---Yes.
You do it?---No. I’ve done it a couple of times.
Yes. And you think that’s okay?---I don’t see a harm in – any harm in it.
Without asking the person first?---It’s just like a tap, like that.
Would you do it to someone in the supermarket, walking by?---No. Because I don’t know them.
Well, is that your criteria for tapping someone on the bottom? You know them?---What, you’re just going to walk up to some random and tap them on the bum? That’s – you don’t do that.
But once they’ve been in the workplace for how long – before you think you know them, to touch their bottom?---I don’t know.
Okay. Because you wouldn’t do it to a woman, would you?---No.
Well, why would you do it to a man?---Because it’s mainly just patting them on the back. It’s not patting them on the bum. It’s like, “Good work. Good work.”
But I was asking you about patting them on the bum?---Yes.
Which you said you’ve done?---Yes. I’ve done it to a couple of boys I’ve known for years, just jokingly, just, “Good work”, and that was it.
Okay. So this is this sporting thing you’re talking about?---Yes.
HER HONOUR: Can I just ask a question? When you say, “Good work”, what do you mean? So what would someone have done?---So - - -
Can you just give me an example where something like - - -?---It’s just like at the end of the night you’ve just hung all night, hung all – like, thousands of birds, it’s just like, “Good work”, like, we’ve just finished, you shake each other’s hands and then you go home.
That’s a mateship-type thing?---Yes.
Thanks.
MR REIDY: What I’m trying to understand is, for this mateship, when is a person on the level of being a mate that you can just feel free to touch them on the bottom?---I don’t know. Just good mates. I’ve been there a long time.
(Transcript pp 650-651.)
Mr Phillips
677 In his affidavit affirmed 6 July 2018, Mr Phillips relevantly deposed:
He had engaged in, and seen other process workers, patting other workers on the buttocks, but would not consider it to be sexual.
He had not seen nor heard of any behaviour at Inghams – with the exceptions of an incident between Mr Ogg and Mr Hill and an incident where a dead bird was thrown at another process worker – that could be considered sexual harassment, discrimination or bullying.
Mr Muhic
678 In his affidavit affirmed 5 July 2018, Mr Muhic relevantly deposed that he was not touched or rubbed on the buttocks by Mr Waldock or Mr Rafferty as Mr Ford claimed (see [104] of Mr Ford’s affidavit). Mr Muhic also gave evidence during cross-examination that he would not tolerate such conduct:
- - - at work. Yes. And just one final matter. Just so I'm clear about something you said, and I'm sorry if I'm - - -?---You’re right. Go ahead.
- - - repeating the question, but you said, did you, that you don’t put up with that sort of stuff if people touch you on the bottom?---Yes, like, even – even now, right now, I wouldn't put up with if – that’s what I mean, like - - -
Yes?---Obviously wouldn't put up with it.
Yes?---Would you put up with it? No, no.
Well, in terms of you - - -?---Yes.
- - - when you say you don’t put up with it - - -?---I mean, like, I just walk away and go straight to the – and complain or – supervisor or whatever.
How many complaints have you made to a supervisor?---I haven't. In regards to what?
Being touched on the bottom?---I haven't. I just told you if I – if it did happen, that’s what I would do.
So you said you – I'm just trying to ..... you don’t have much of a recollection of ever being touched; is that the case?---Yes.
So you, in terms of your evidence – you've never been in a situation where you've had to tell a person not to touch you?---No, not really.
And you've never had to go to a supervisor about someone touching - - -?---No, not for that. No, no.
(Transcript p 803-804.)
Mr Levaai
679 In his affidavit affirmed 5 July 2018, Mr Levaai relevantly deposed that he had engaged in bumping and pushing other employees in the shoulder with his shoulder and patting someone on the backside “as people are friendly”, but not sexual or offensive interactions.
Other witnesses
680 Mr Okoro, Mr Dhanoa, Mr Rahiwi, Mr Lucht, Mr Chan, Ms Horne and Mr Johnson all made statements in late November 2016 or early December 2016, during the workplace investigation, that they had never seen, heard of, nor been the perpetrator of patting a co-worker on the buttocks.
Consideration
681 In summary, the applicant submitted:
There was no need to pat Mr Ford or anyone else on the buttocks for communication as attention could be gained in the “normal” way, by a tap on the shoulder or upper back, or by a wave.
Mr Ford “didn’t regard himself as one of the footballers and he didn’t appreciate it as a sign of a job well done.”
Not a single witness gave evidence that Mr Ford ever engaged in buttocks patting.
Mr Waldock’s evidence concerning why employees engaged in buttock slapping was inconsistent when comparing his affidavit evidence (namely, attracting attention) with his evidence during cross-examination (namely, a sportsmanlike gesture, and then later during his evidence, attracting attention).
682 The respondents submitted:
Some employees in the Red Area, but not all or most, engaged in patting conduct towards each other for a variety of reasons, including mateship, congratulations, seeking someone’s attention or as a direction in the workplace.
In the hanging room, a collegiate culture existed, reinforced by the labour intensive work. Some of the men may have tapped each other on the shoulder, back or backside to get attention or when shifting around the carousel.
The suggestion that some employees in the Red Area spoke of Gay Fridays as involving patting and dry humping conduct can only be viewed through the historical perspective in which that evidence was given.
The applicant’s submissions indicated to the Court that the Red Area at Murarrie was a chaotic scene of sexual assault and harassment which directly impacted him. The truth of the matter lies elsewhere, in the respondents’ evidence, namely that although some employees may have patted one another in a jocular or sportsman-like manner at times, this never included the applicant, and the range of conduct alleged in these proceedings is incorrect.
The applicant relied on evidence of Mr Rafferty as to events that occurred historically at Inghams, but did not want the Court to accept Mr Rafferty’s evidence that that conduct died off or that Mr Rafferty’s conduct to Mr Ford was as limited as Mr Rafferty deposed.
Mr Rafferty gave clear evidence that the one time he patted Mr Ford on the buttocks, Mr Ford told him not to, and Mr Rafferty did not do it again because he knew it upset Mr Ford.
This was not sexual harassment in the circumstances, particularly in the context of the work environment. It was quite ordinary contact between co-workers, many of whom had worked together for years and socialised outside of work.
683 Insofar as I can ascertain, the parties did not make detailed submissions as to the proper approach of the Court to consideration of the evidence, or the standard of proof required of the applicant to substantiate his case. However, the Full Court in Vergara v Ewin (2014) 223 FCR 151; [2014] FCAFC 100, affirming the decision of Bromberg J at first instance in Ewin v Vergara (No 3) (2013) 307 ALR 576; [2013] FCA 1311, observed:
[21] Counsel emphasised the gravity of the finding of sexual intercourse and sexual touching in the context that this conduct was also found to be “unwelcome”. He contended that it was tantamount to a finding of rape. Counsel referred to the moral obloquy flowing from the finding, suggesting that it would stigmatise the appellant permanently. In these circumstances, counsel submitted that the Judge had failed to apply appropriately the approach discussed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 and as required by s 140 of the Evidence Act 1995 (Cth) (Evidence Act), saying:
We contend … that, in spite of what the learned trial judge said in the Reasons at [464], he materially underestimated the impact of the gravity of the matter alleged. That being so, his Honour did not, properly understood, take into account the gravity of the matters alleged, as was his duty under s 140(2)(c) of the Evidence Act 1995 (Cth).
[22] This contention was at the heart of the appellant’s submissions with respect to the Judge’s findings concerning the events of 15 May 2009 and, accordingly, it is appropriate to refer in some detail to the relevant principles.
[23] In the well-known passage in Briginshaw at 361–2 (which involved the question of whether adultery had been proved), Dixon J held:
[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for vicarious purposes … Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
(Emphasis added)
As can be seen, Dixon J emphasised that the nature and consequence of the fact to be proved is pertinent to the degree of satisfaction required of the fact finder before concluding that the fact has been proved. Dixon J continued at 362–3:
This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.
(Emphasis added)
…
[24] Reference may also be made to Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171 in which Mason CJ, Brennan, Deane and Gaudron JJ said:
[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
(Citations omitted)
…
[25] The effect of the approach stated in Briginshaw and the later authorities is that the graver the allegations and their potential consequences, the stronger is the evidence required to conclude that the allegations have been established: Ashby v Slipper [2014] FCAFC 15 at [69].
684 In my view the applicant has not substantiated the aspect of his case referable to Agreed Issue 1(a). I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, and for the following reasons.
685 First, I accept that buttocks patting or buttocks slapping conduct occurred at Inghams during the time that Mr Ford worked at Inghams. However, it is evident that not all employees engaged in this conduct, and that this conduct occurred between employees who friends. Specifically: Mr Rafferty, Mr Waldock and Mr Phillips were friendly with each other, and I consider would have tapped each other on the buttocks in passing at work for reasons including as a greeting, as a joke, as a sign of congratulation for work well done, or in order to gain each other’s attention. I consider it also likely that any of those three may have occasionally tapped other co-workers on the buttocks for those reasons, but not with the regularity or the prolonged “suggestive rubbing” as alleged by Mr Ford.
686 Mr Rafferty gave evidence to the effect that I have found. His evidence is consistent with the evidence of Mr Mole (transcript pp 650-651), Mr Hannett (transcript p 918 ll 9-15), Mr Phillips (transcript p 678 ll 37-47), Mr Waldock (transcript pp 610-613) and Mr Collett (transcript p 813 ll 22-30).
687 Second, that such conduct was not a widespread practice at Inghams is consistent with evidence of employees who denied that they had been the object of slapping on the buttocks, including Mr Muhic (transcript p 802 ll 23-45), Mr Okoro (transcript p 1089 ll 6-10), Mr Dhanoa, Mr Rahiwi and Mr Collett (transcript p 813 ll 22-30). In respect of the evidence of these witnesses, I note:
Mr Muhic and Mr Collett both gave evidence that they would not have tolerated being patted on the buttocks, and I accept their evidence as credible.
When Counsel for the applicant asked Mr Okoro during cross-examination whether he had ever been “slapped… on the backside” at work, Mr Okoro vehemently denied it, and in my view looked genuinely horrified at the prospect. In my view Mr Okoro’s evidence to that effect was credible.
I have no reason to doubt that Mr Dhanoa and Mr Rahiwi were telling the truth when they stated that they had never seen any co-workers being slapped on the buttocks. I consider their evidence credible.
688 In this regard, I also note the evidence of Mr Collett and Mr Muhic who specifically stated that they had never seen Mr Rafferty pat or rub Mr Ford in the manner in which Mr Ford alleged, notwithstanding that each witness had worked with both Mr Rafferty and Mr Ford.
689 Third, to the extent that the applicant submitted that some form of “permission” was required by an Inghams’ worker before a friend was “consensually” tapped on the buttocks, I consider such a submission to be unrealistic. In particular, I note the following exchange between Counsel for the applicant and Mr Phillips:
And the only way you would know it would be consensual is if you had spoken to the person beforehand?---It depends on the prior relationship of the people involved.
What do you mean by that?---Well, you have two people working together and they have a mutual understanding and they do joke and interact that way, then it would be – it was common for them to do that within their own relationship.
So it would take quite a bit of bonding, then, from my understanding of what you’re saying, before someone would feel comfortable to do it?---Possibly.
And comfortable to receive it?---If it was me then, yes, probably.
(Transcript p 679 ll 16-26.)
690 I consider Mr Phillips’ evidence perfectly credible.
691 Fourth, I accept that Mr Ford was patted or slapped on the buttocks by Mr Rafferty on only one occasion. The evidence of Mr Rafferty, that he had slapped Mr Ford on the buttocks once only, and then to “wake him up”, was expanded by Mr Rafferty during the hearing as follows:
Well, you need to go back – sorry – to paragraph 28 of the statement of claim, that’s the allegation against you, and I will read it out:
In about November 2015, Rafferty approached Mr Ford from behind, and then when Mr Ford was standing in the feather room production area and forcefully inserted his finger into Mr Ford’s anus.
Do you see that?---Yes.
And your response to that incident, in the defence, is that some time in September you slapped Mr Ford on the bottom?---I don’t know – sir, there was an incident where I slapped Richard Ford on the bottom in the feather room, and he – he was up doing a – plucking feathers, which is quite a boring job and you fall asleep doing it, and I - - -
He was working. He was standing working?---Yes.
HER HONOUR: It’s fine. Let him - - -
THE WITNESS: Yes. I would – I would fall asleep doing it. It was – you see there for hours going – pulling feathers off chickens. And I had come behind Richard and slapped him on the bum to - - -
HER HONOUR: When you say you slapped him, what do you mean?---Like, I – I can’t remember because it was so long ago. Like, tapped him, slapped him, not like hard to hurt him, but maybe to give him a bit of a shock, like, wake up. Well, I – at the time, I found it funny. I done it as a – a friendly thing to do, not in a bullying way at all. And I think I gave Richard a bit of a shock. And Richard told me off for it and said, “I don’t like that contact – you touching my bum.” And I apologised to Richard. And he said, “Just don’t do it again.” He – he did look quite annoyed at me. But, then, after that, we sat down in the lunch room later on in the day, or we got along after that. It was fine. And that was the only incident where I recall touching Richard inappropriately.
Thank you?---Yes.
MR REIDY: And you agree it was inappropriate?---Inappropriately I – I did slap him on the bum without his permission, or him doing it to me. I shouldn’t have done that, and it did give him a fright. But I didn’t do it in a sexual way, I did it in a jokingly way to wake him up, to give him a bit of a fright. While he was doing it I thought it was funny. I realised once he said he didn’t like it that I shouldn’t have done it.
(Transcript p 549 ll 5-46.)
692 Later during cross-examination, Mr Rafferty said:
You haven’t said in your affidavit anything about Mr Ford being asleep in that room. You’ve only said that today, Mr Rafferty?---Richard wouldn’t have been - - -
No, can you answer the question?---Yes.
HER HONOUR: No, he is answering.
Go on?---I doubt Richard would have been asleep, as in – but he would have just been – like, you just sit there and you zone out. “Asleep”, like, as in just about falling asleep there. And I know plenty of other people that have fallen asleep there, so maybe he was asleep. I didn’t see the front of Richard’s face, but I was leaning over on the thing, like so. I guess I can’t state that Richard was asleep, but he was definitely not doing the – he wasn’t pulling the feathers, so he was obviously zoned out.
(Transcript p 557 ll 24-37.)
693 In my view Mr Rafferty’s evidence was credible. I am not satisfied that Mr Rafferty gave evidence that he thought Mr Ford was actually asleep – his description of Mr Ford standing and being “zoned out”, however, is credible, particularly when a person is engaged in a repetitive task. I consider it likely that Mr Rafferty approached Mr Ford and slapped him on the buttocks to startle him, or to attract his attention. However, I also consider it likely that this was done in a joking fashion, as Mr Rafferty deposed.
694 I also accept Mr Rafferty’s evidence that Mr Ford spoke angrily to him for this conduct, and that Mr Rafferty did not do it again. Mr Ford was an older man than Mr Rafferty, although insofar as I can ascertain from the evidence was friendly with Mr Rafferty. I do not consider that Mr Rafferty would have felt comfortable touching Mr Ford after Mr Ford had rebuked him for doing so once. I reject Mr Ford’s claim that Mr Rafferty engaged in “suggestive rubbing of Mr Ford’s buttocks on any, various and regular occasions”, and that that suggestive rubbing “consisted of slow and lingering rubbing of Mr Ford’s buttocks”.
695 Fifth, I consider it likely that Mr Waldock, who appeared to be a friend of Mr Ford while they worked together at Inghams, occasionally slapped Mr Ford on the buttocks. Mr Waldock’s evidence supports such a finding (transcript pp 611-612).
696 I do not accept that Mr Waldock had regularly and suggestively rubbed Mr Ford’s buttocks as Mr Ford claimed, and I do not accept that this conduct happened at least three to four times per week and sometimes on a daily basis in front of others at Inghams, as Mr Ford alleged. This allegation is inconsistent with the evidence of many witnesses at Inghams who rejected the facts as stated by Mr Ford (including witnesses who had worked with both Mr Ford and Mr Waldock).
697 I also agree with the submission of the respondents that Mr Ford was unable to explain why he continued to socialise with Mr Waldock even in July 2016 when, on Mr Ford’s own account, Mr Waldock had been seriously and consistently sexually harassing him for over a year. In such circumstances, Mr Ford’s ongoing socialisation with Mr Waldock outside the workplace does not make sense. Mr Ford’s explanation that Mr Waldock’s alleged conduct only occurred whilst at Inghams is implausible – if Mr Waldock was inclined to “suggestively rub” Mr Ford’s buttocks at Inghams, one would imagine he might do so outside Inghams as well.
698 Sixth, Mr Ford’s evidence supporting his allegations against Mr Rafferty and Mr Waldock in respect of Agreed Issue 1(a) must be viewed through the prism of my significant concerns as to Mr Ford’s credibility, and his inconsistent evidence. Further, Mr Ford’s evidence is certainly countered by the evidence of many witnesses called by the respondents, both referable to conduct in the workplace specifically by Mr Rafferty and Mr Waldock, and referable to the alleged prevalence of “buttock patting” at Inghams.
699 As is already clear from my reasons – in respect of the allegations of Agreed Issue 1(a), I prefer the evidence of Mr Rafferty and Mr Waldock to that of Mr Ford.
700 Further, as I have already observed, I do not consider evidence of Mr Ogg to be reliable, and that includes Mr Ogg’s evidence in relation to this issue.
701 In relation to the evidence of Mr Bhardwaj:
Mr Bhardwaj’s evidence as to this issue is vague and unparticularised in relation to both the date and place that alleged conduct occurred.
I am not persuaded that, at the time conduct was allegedly occurring, Mr Ford told Mr Bhardwaj of it, or of any other alleged sexual harassment, as Mr Bhardwaj claimed. Indeed, the evidence of Mr Ford was that he (Mr Ford) was friendly with Mr Waldock and Mr Phillips both inside the workplace and outside. Accordingly, it is unclear why Mr Ford would have allegedly confided in Mr Bhardwaj as Mr Bhardwaj deposed.
I do not accept that Mr Bhardwaj would have tolerated sexual harassment of the kind he alleged had occurred to him, or that Inghams would have taken no steps if Mr Bhardwaj had reported it.
As I have already observed, I consider that Mr Bhardwaj’s evidence concerning alleged sexual harassment of himself and Mr Ford was an embellishment by him.
702 I do not consider Mr Bhardwaj’s evidence in relation to these allegations to be reliable.
703 In relation to evidence of Mr Ly, I have reservations concerning the fact that Mr Ly gave new evidence in the Third Ly Affidavit, in which he deposed that Mr Muhic had slapped him on the buttocks. Not only was this evidence four weeks out from the trial, and in response to questions put to Mr Ly by the solicitors for Mr Ford, but having seen and heard Mr Muhic in the witness box, I do not accept Mr Ly’s evidence concerning the alleged conduct of Mr Muhic. I also consider that if Mr Ly had been slapped as he claimed, he would have made a complaint.
704 Overall, I prefer the evidence of the respondents and the respondents’ witnesses in respect of Agreed Issue 1(a).
Was the substantiated conduct sexual harassment within the meaning of s 28A of the SD Act?
705 I have found that:
(1) Mr Rafferty slapped Mr Ford on the buttocks once at Inghams; and
(2) Mr Waldock slapped Mr Ford on the buttocks on a number of occasions at Inghams.
706 Section 28B of the SD Act provides that sexual harassment is unlawful in the sphere of employment. “Sexual harassment” is defined in s 28A of the SD Act in the following terms:
28A Meaning of sexual harassment
(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 the possibility that the person harassed would be offended, humiliated or intimidated.
(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c) any disability of the person harassed;
(d) any other relevant circumstance.
(1) 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.
Relevant principles
707 Recently, in Hughes trading as Beesley and Hughes Lawyers v Hill (2020 382 ALR 231; [2020] FCAFC 126, the Full Court made the following observations concerning s 28A of the SD Act:
21. There are essentially three elements to this provision.
22. First, the Court is directed by subs (1) to ask itself whether there has been any of three identified forms of conduct: a sexual advance, a request for sexual favours or other conduct of a sexual nature. Each of these concepts involves the application of a defined legal standard to the facts as found. The Court must determine, on those facts, whether there was a sexual advance, a request for sexual favours or other conduct of a sexual nature. It is a question for the Court and it is a question of fact. In determining whether there has been conduct of a sexual nature the Court applies, of course, the definition of that term in s 28A(2).
23. Secondly, if an identified form of conduct is established subs (1) also requires that it must be ‘unwelcome’ to the person allegedly harassed. This is a question of fact which is subjective and which turns only on the allegedly harassed person’s attitude to the conduct at the time. Even if the Court has concluded under the first limb that one person has engaged in conduct of a sexual nature towards another person, this will not constitute sexual harassment under the provision if it was not actually unwelcome in this sense. Ordinarily this will be proved by the person allegedly harassed giving evidence that the conduct was unwelcome but that mode of proof is not dictated by the statute and proof of this fact, like proof of any other fact, may be done by a variety of means. In some cases, I suspect this is one, the unwelcome quality of the conduct will be painfully obvious.
24. Thirdly, once it be established that there was conduct of a sexual nature towards another and that the conduct was unwelcome, the provision imposes an objective delimitation on the provision’s ambit. The ‘circumstances’ must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct. The ‘circumstances’ are defined broadly in s 28A(1A) and include, importantly for this case, the relationship between the harasser and the harassed.
25. The objective standard imposed by the provision does not relate to the first two issues. The objective question is not whether a reasonable person would regard the conduct as being sexual in nature (as defined) for that is a threshold question the Court determines for itself. Nor is the objective standard applied to the question of whether the person allegedly harassed ought to have regarded the conduct as unwelcome, for that is an issue to be determined by reference to the actual state of mind of the person. Instead, the objective standard is applied to a new issue – that of whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
26. In answering this question, the reasonable person is assumed by the provision to have some knowledge of the personal qualities of the person harassed. The extent of the knowledge imputed to the reasonable person is a function of the ‘circumstances’ which the provision requires be taken into account. Mention has already been made of the nature of the relationship between the harasser and the harassed. It is convenient also to note that the circumstances will include any disability the harassed person is suffering from (subs (1A)(c)) as well as matters such as sex, age, religious belief or sexual orientation (subs (1A)(a)). But the list in subs (1A) is merely inclusive so that other unspecified but relevant circumstances may also be taken into account. The canvas is broad.
27. Equipped then with that information, the question to be asked is whether the reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Each of these is different in kind and it should not necessarily be thought that they are arranged in order of seriousness. It may, in some cases, be worse to be deeply offended than it is to be slightly humiliated.
708 Sexual harassment is unlawful regardless of the sex, sexual orientation or gender identity of the parties. It is unlawful even where the person committing the harassment had no sexual interest in the complainant: Lulham v Shanahan, Watkins Steel & Ors [2003] QADT 11, Font v Paspaley Pearls [2002] FMCA 142.
709 Turning to the first element of s 28A of the SD Act, whether conduct is conduct of a sexual nature is defined inclusively in the SD Act. Relevantly, in Poniatowska v Hickinbotham [2009] FCA 680, Mansfield J said:
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.
(Emphasis added.)
710 I note that the decision of Mansfield J was affirmed in Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92.
711 In Von Schoeler v Alan Taylor and Company Ltd t/as Boral Timber [2018] FCCA 3932 at [77], Jarrett FCCJ observed that any intentional touching by one adult of another adult on the buttocks, regardless of whether it is a light slap or a distinct grope, is generally understood to be of a sexual nature. Similarly, in McGuire v Reyes t/as Entrance Lakehouse [2017] NSWCATAD 50, the Tribunal found that an employee placing his hands on the buttocks of a female employee constituted sexual harassment. However, in Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754, Rangiah J found that tapping on the buttocks with a riding crop was not conduct of a sexual nature in the circumstances of that case, as the applicant herself had engaged in the conduct.
712 Turning to the second element of s 28A of the SD Act: whether or not conduct is unwelcome is a subjective question: Hughes v Hill at [23]. Conduct is unwelcome if it is not solicited or invited and is regarded by the target as undesirable or offensive: see Aldridge v Booth (1988) 80 ALR 1 at [5]. The circumstances in which the particular conduct occurred will affect whether or not the conduct is considered unwelcome. The reaction of the recipient of the conduct is relevant, as well as the nature of the relationship between the parties and the specific context in which the conduct occurred: see Noble v Baldwin [2011] FMCA 283 at [235], Styles v Clayton Utz (No 3) (2011) 255 FCR 364; [2011] NSWSC 1452 at [213]; Morton at [348].
713 Whether or not the person engaging in the conduct intended to sexually harass the recipient of the conduct, or the motive was to engage in a joke or otherwise, is irrelevant. Whether conduct may not have been unwelcome to others, or has been an accepted feature of the workplace in the past, is also irrelevant: see Hall v A & A Sheiban Pty Ltd & Ors (1989) 20 FCR 217.
714 Turning to the third element of s 28A of the SD Act: it is well settled that this issue is determined on an objective basis, namely the perspective of a reasonable person in the role of a hypothetical observer: Kraus v Menzie [2012] FCAFC 144 at [7], see also Leslie v Graham [2002] FCA 32 at [70], Poniatowska at [289], Ewin v Vergara (No 3) (2013) 307 ALR 576, [2013] FCA 1311 at [28].
715 The applicant relevantly submitted, in summary:
Touching someone in an obviously private area which on a day to day basis is clothed and covered, is conduct of a sexual nature.
A reasonable person would have anticipated the possibility that the person touched could be offended or humiliated.
There is nothing about entering the workplace that makes this conduct less offensive or humiliating than engaging in the same conduct at the supermarket.
Gender is irrelevant.
716 The respondents submitted that any patting of Mr Ford’s buttocks by Mr Rafferty or Mr Waldock was:
infrequent – indeed by Mr Rafferty only once;
never conducted in a manner that could be described as sexual or suggestive; and
never engaged in between participants who did not understand the behaviour to be friendly, accepted and non-threatening.
717 There is no suggestion that any conduct of Mr Rafferty or Mr Waldock was in the nature of an “unwelcome sexual advance” towards, or “an unwelcome request for sexual favours” from, Mr Ford. At most, any such conduct could be unwelcome conduct of a sexual nature in relation to Mr Ford within the meaning of s 28A(1)(b) of the SD Act.
718 Taking into account my findings of fact, the principles I have set out, and the submissions of the parties, in my view the slapping of Mr Ford’s buttocks by Mr Rafferty or Mr Waldock at the Inghams workplace:
was not conduct of a sexual nature; and
did not take place in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that Mr Ford would be offended, humiliated or intimidated.
719 I have formed this view for the following reasons.
Mr Rafferty
720 In relation to the relevant conduct by Mr Rafferty I note that, as a general proposition, a single instance of conduct can constitute conduct of a sexual nature for the purposes of s 28A(1)(b) (Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 279-280, Bennett v Everitt & Whyalla Fish Factory [1988] HREOCA 7). I have already stated that I do not accept that Mr Rafferty repeatedly slapped or rubbed Mr Ford’s buttocks in a lingering fashion, or suggestively, as Mr Ford alleged.
721 It is not in dispute that, on one occasion, Mr Rafferty intentionally slapped Mr Ford on the buttocks. I also note that, at the relevant time, Mr Rafferty and Mr Ford were friendly co-workers, although Mr Ford informed Mr Rafferty that he did not like that conduct. While there are many contexts in which touching another adult’s buttocks could be considered conduct of a sexual nature, I am not convinced that every touching is necessarily conduct of a sexual nature within the meaning of s 28A(1) of the SD Act.
722 Many witnesses called by the respondents gave evidence during the course of the trial that, to their knowledge, buttock slapping is common in the sporting context, where it is done in a playful or joking fashion, to express camaraderie, or to congratulate the recipient on a job well done. The evidence of these witnesses was also that, in their experience, such slapping on the buttocks extended to contexts outside the sporting context. In particular, I note the following evidence of Mr Rafferty:
MR REIDY: When it first happened, you didn’t think it was normal, did you?---Well - - -
To you – when it first happened to you, you didn’t think it was normal?---I – fairly quickly I did think it was normal in that situation.
Maybe my question wasn’t clear enough. What I was asking you was the very first time - - -?---Yes.
- - - that it happened to you, you didn’t think it was normal, did you?---I just thought it was a bunch of guys having horseplay. I didn’t take it sexually.
That’s not the question I asked you?---Yes.
It was a different question. I will try to – if you have trouble understanding this question, please tell me?---Yes.
You did not think it was a normal thing to do for someone to slap you on the bottom the very first time it happened to you at Inghams, did you?---Yes, I did think it was normal, because I had been in other work environments where that had happened, and at school. Yes. It was just a horseplay.
Okay.
Did - - -
HER HONOUR: What other work environments?---I just seen, like, at a friend’s works and that it happened. And at school guys would do it to each other, yes.
(Transcript p 572 ll 1-30.)
723 In my view the evidence of the respondents’ witnesses, including Mr Rafferty, was credible. In the present circumstances, when Mr Rafferty slapped Mr Ford on the buttocks, it was between friends and done in a playful and jovial fashion to startle him.
724 In this respect, I note again the comments of Mansfield J in Poniatowska at [294]. I am not satisfied that the circumstances where Mr Rafferty slapped Mr Ford on the buttocks to startle him was conduct which invited or otherwise explored the prospect of Mr Ford participating or engaging in some form of sexual behaviour with Mr Rafferty or anyone else, or which suggested that Mr Ford may have done so or may do so, or that Mr Ford was a person of a character empathetic to sexual behaviour with Mr Rafferty or anyone else.
725 I do not accept the analogy drawn by the applicant with an adult slapping another adult’s buttocks in the supermarket. Mr Mole readily explained the difference during cross-examination, being that he would not slap someone on the buttocks in the supermarket because they were a stranger, whereas he was “good mates” with people at work as he “had been there a long time” (transcript pp 650-651). I find this evidence on the part of Mr Mole credible, and supportive of a finding that buttock slapping or patting among friends is not conduct of a sexual nature.
726 In response to questions during cross-examination, Mr Mole, Mr Rafferty and Mr Waldock agreed that they would not slap a woman on the buttocks. I note that there were no women working in the hanging room or the feather room, or generally in the Red Area, other than perhaps in the office (transcript p 571 ll 31-34). In my view however, gender-specific issues are not relevant in the context of the allegations before the Court. It is the nature of the relationship of the relevant workers, as friendly with each other, rather than their gender, which informed the character of the conduct in question. This is again consistent with Mr Rafferty’s evidence – as Mr Rafferty explained, he would not slap Mr Ford on the buttocks after the first occasion because Mr Ford made it clear that their relationship was such that he was not receptive to such conduct from Mr Rafferty.
727 The applicant criticised the expert witness, Dr Shaikh, for failing to appreciate the “real world of unskilled labour or people in Mr Ford’s world” (transcript p 1300 ll 23-24). I do not accept this criticism in respect of Dr Shaikh, however I do query its application to the submissions of the applicant concerning the attitude of workers in the Red Area at Inghams, who may have felt comfortable, among long-standing colleagues with whom they were friendly, tapping each other on the buttocks in passing.
728 However, if I am wrong in finding that the nature of the relationship between workers at Inghams informed the question whether the conduct of Mr Rafferty in, once, slapping Mr Ford on the buttocks was “conduct of a sexual nature”, I consider that the nature of the relationship would have informed the question whether a reasonable person would have anticipated the possibility that Mr Ford would be offended, humiliated or intimidated (pursuant to s 28A(1) of the SD Act) on the one occasion when Mr Rafferty slapped Mr Ford on the buttocks.
729 Mr Ford deposed that the conduct of Mr Rafferty towards him was unwelcome, and indeed he made this clear to Mr Rafferty at the time. However, in finding that a reasonable person would not have anticipated the possibility that Mr Ford would be offended, humiliated or intimidated, I take into account the following:
Notwithstanding the incident in which Mr Rafferty slapped Mr Ford’s buttocks, there was no credible evidence that there was any unfriendliness between Mr Ford and Mr Rafferty until the incident involving the truck lock-out in August 2016. Rather, the evidence before the Court suggests that until then, the two were friendly. Indeed, Mr Rafferty claimed to have socialised with Mr Ford on several occasions outside of the workplace. It is clear that Mr Rafferty and Mr Ford had many – at the least, friendly – discussions at Inghams during the time that Mr Ford worked there. The reason that Mr Ford knew of Mr Rafferty’s past experiences of being bullied was that Mr Rafferty had confided this to Mr Ford during the course of their conversations. Mr Rafferty gave evidence that he and Mr Ford “spoke most days” and that he “had a friendly relationship with him” (at [63] and [67] of Mr Rafferty’s affidavit sworn 7 July 2018) – I find this evidence credible.
Mr Rafferty and Mr Ford were both process workers at Inghams, and worked together in various areas of the Murarrie premises.
The workplace environment at Inghams Murarrie involved difficult manual labour, where employees would sometimes behave in a playful fashion towards each other.
The workplace environment at Inghams Murarrie (in particular, the Red Area) was noisy, and attracting attention could require a physical touch.
Mr Ford was older than Mr Rafferty, and there was no reason for Mr Ford to be intimidated by Mr Rafferty (as, indeed, was demonstrated by Mr Ford’s effective rebuke to Mr Rafferty when Mr Rafferty slapped him).
I do not accept the evidence of Mr Ford at [136] of his affidavit sworn 4 June 2018 that Mr Rafferty rubbed Mr Ford’s suggestively on many occasions and that on all those occasions Mr Ford told Mr Rafferty to “piss off” or made a similar comment.
I do not accept that there was a history of Mr Ford rebuffing such behaviour, or rebuking Mr Rafferty in respect of such behaviour, at the time that Mr Rafferty slapped Mr Ford on the buttocks.
There was no obvious attribute of Mr Ford, including by reference to such matters as his sexual orientation, a disability, a religious belief or his ethnic origin, which would lead a reasonable person to anticipate the possibility that he would be offended, humiliated or intimidated by Mr Rafferty’s conduct in slapping his buttocks once.
The weight of evidence before the Court is that a person slapping a friend on the buttocks as a joke, or sign of friendship or camaraderie would not be expected to be offensive, humiliating or intimidating to him, even in the working environment.
730 In summary, a reasonable person would not have anticipated the possibility that Mr Ford would be offended, humiliated or intimidated by Mr Rafferty slapping Mr Ford on the buttocks as a joke to startle him.
Mr Waldock
731 In relation to conduct of Mr Waldock, while Mr Waldock conceded that he may have slapped Mr Ford on the buttocks on more than one occasion, I am not persuaded that this behaviour was conduct of a sexual nature within the meaning of s 28A(1) of the SD Act. Similarly to the conduct of Mr Raffety, and for the same reasons, I am satisfied that the conduct of Mr Waldock:
had no sexual overtones;
did not involve lingering or suggestive rubbing, as Mr Ford alleged; and
occurred between friends.
732 Mr Ford stated that this conduct on the part of Mr Waldock was unwelcome. However, there is no credible evidence before the Court indicating that Mr Ford ever told Mr Waldock that Mr Waldock slapping his buttocks was unwelcome. The absence of a discouraging reaction from Mr Ford militates against a finding that the conduct on the part of Mr Waldock was actually unwelcome: see for example Morton at [272], [344]. I am not satisfied that the conduct of Mr Waldock was unwelcome within the meaning of s 28A(1) of the SD Act.
733 Even assuming that I am wrong, and the conduct of Mr Waldock was conduct of a sexual nature and unwelcome, I am not satisfied that a reasonable person would have anticipated the possibility that Mr Ford would be offended, humiliated or intimidated by this conduct of Mr Waldock pursuant to s 28A(1) of the SD Act. In so finding, I take into account that:
Mr Waldock and Mr Ford were clearly friends at the time, both at work and outside of work. The evidence before the Court was that they socialised outside working hours (including drinking and riding motorcycles together) as late as July 2016 (transcript p 125 ll 38-39), and that Mr Ford communicated with Mr Waldock in September 2016, wishing him a happy Father’s Day, the day before Mr Waldock learned of Mr Ford’s complaint about him to Inghams.
Mr Waldock and Mr Ford were both process workers at Inghams, and worked together in various areas of the Murarrie premises. There was no reason for Mr Ford to be intimidated by Mr Waldock – on the contrary, the evidence before the Court was that Mr Ford encouraged Mr Waldock’s friendship both inside and outside the workplace.
I do not accept the evidence of Mr Ford that Mr Waldock rubbed Mr Ford’s buttocks suggestively on many occasions and that Mr Ford told Mr Waldock to “piss off” or made a similar comment on such occasions.
Unlike the situation with Mr Rafferty, there was no credible evidence that Mr Ford ever objected or told Mr Waldock not to slap him on the buttocks or anywhere else.
The workplace environment at Inghams Murarrie involved difficult manual labour, where employees would sometimes behave in a playful fashion towards each other.
There was no obvious attribute of Mr Ford, including by reference to such matters as his sexual orientation, a disability, his religious beliefs or his ethnic origin, which would lead a reasonable person to anticipate the possibility that he would be offended, humiliated or intimidated by Mr Waldock’s conduct.
The weight of evidence before the Court is that a person slapping a friend on the buttocks as a joke, or sign of friendship or camaraderie would not be expected to be offensive, humiliating or intimidating to him, even in the working environment.
734 It follows that, both in respect of Mr Rafferty and Mr Waldock, the intentional slapping of Mr Ford on the buttocks was not conduct of a sexual nature, and it was not conduct which a reasonable person would have anticipated would cause Mr Ford to be offended, humiliated or intimidated.
Conclusion
735 Notwithstanding the insistence of Mr Ford that the conduct he alleged took place, ultimately he is required to prove the allegations referable to Agreed Issue 1(a). On the evidence before me, Mr Ford’s allegations against Mr Rafferty and Mr Waldock in respect of Agreed Issue 1(a) are not substantiated.
agreed Issue 1(b): The Second Respondent or the Third Respondent engaged in the conduct of performing simulated genital sex acts, otherwise known as dry humping, on the Applicant in the period from around August 2015 to about September 2016, in the feather room and the locker room, as alleged in paragraph 18 of the RFASOC.
736 This issue is referable to paras 18 to 20 of the RFASOC, which provide:
18. From around August Commencing in about April or May 2015, Rafferty and Waldock regularly performed simulated genital sex acts on Mr Ford (the “conduct”).
Particulars
(a) Rafferty and Waldock engaged in the conduct on Mr Ford individually and jointly.
(b) The conduct occurred in both the feather room and the locker room.
(c) The conduct occurred approximately weekly.
(d) Other employees were present on some occasions when the conduct occurred and would either laugh or appear to ignore the conduct.
(e) For conduct in the feather room:
(i) It often occurred when Mr Ford was engaged in work that required his arms to be raised, leaving his body exposed and Mr Ford unable to protect himself;
(ii) It often involved Rafferty or Waldock coming at Mr Ford from behind, restraining Mr Ford by grabbing him by the hips, and the assailant then grinding or gyrating their genital region on Mr Ford’s buttocks such that Mr Ford felt that region rubbing against his buttocks.
(f) On other occasions, each of Rafferty and Waldock approached from either side at the same time and rubbed their genital region against Mr Ford’s hips such that Mr Ford felt the genital region of each of them.
(g) Employees of Inghams and Rafferty and Waldock commonly referred to the conduct as “dry humping”.
19. Mr Ford:
(a) Did not solicit the conduct pleaded in paragraph 18 above;
(b) Communicated to Rafferty and Waldock that the conduct was unwelcome, particulars of which are at paragraph 16 (b) above.
20. The conduct of Rafferty and Waldock pleaded in paragraph 18 above caused Mr Ford:
(a) Immediate shock, distress, offence and humiliation;
(b) Feelings of horror;
(c) Feelings of being violated;
(d) Feelings of being ridiculed;
(e) Feelings of self-loathing;
(f) Feelings of disgust;
(g) Loss of human dignity;
(h) Feelings of lack of self-worth;
(i) Sleeplessness;
(j) Anxiety;
(k) Depressive feelings;
(l) Nausea, revulsion and feeling sickened;
(m) Feelings of being intimidated;
(n) Feeling belittled;
(o) Feeling ridiculed;
(p) Increasingly feeling introverted;
(q) Feeling powerless;
(r) Feelings of isolation
[Subparas (a) to (r) are hereafter referred to the “symptoms and reactions”.]
737 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 18 to 20 of the RFASOC, with the exception of para 19(a), which the third respondent neither admitted nor denied.
738 In his amended defence, the second respondent also denied paras 18 to 20, insofar as those paragraphs related to him. The second respondent also stated as follows in relation to para 18 of RFASOC:
(a) on occasions that the machine in the feather room would break down, the Applicant would leave the room and leave the Third Respondent to fix the machine;
(b) fixing the machine left the Third Respondent covered in feathers, water and grime; and
(c) the Second Respondent witnessed that, when the Applicant later entered the locker room (where both he and the Third Respondent were), the Third Respondent (who was still covered in feathers, water and grime) would rub himself on the applicant in an attempt to cover the Applicant in some of the grime. This conduct was not a “simulated genital sex act” but appeared to be an expression of frustration by the Third Respondent that the Applicant would leave the Third Respondent to perform the work that they were both rostered to perform.
Evidence of the applicant
Mr Ford
739 Mr Ford in his redacted affidavit sworn 4 June 2018 deposed, in summary, at [104]-[109] and [142]-[160] that:
He witnessed incidents of “dry humping” of co-workers.
“Dry humping” was a term commonly used by workers at Inghams to describe one man pretending to perform sex on another male co-worker by rubbing his groin area suggestively on the body of the other co-worker.
Sometime prior to June 2015, he witnessed Mr Rafferty and Mr Waldock dry hump Mr Okoro and dry hump each other.
He had asked Mr Waldock about why people were acting in this way and how they “got away with doing it” and Mr Waldock answered, “we have ‘Gay Friday’,” which he explained included workers “dry humping” and touching each other on the buttocks. Mr Waldock said it was just what everyone did and that even human resources knew about it.
In about April 2015, around Easter, Mr Rafferty and Mr Waldock started to perform simulated genital sex acts (“dry humping”) on Mr Ford, and they appeared to be having fun while engaging in the conduct.
The dry humping of him by Mr Rafferty and Mr Waldock occurred mainly in the feather room, and also in the locker room, at least weekly.
There were times when other employees were present and they would either ignore the conduct or laugh.
During the first half of 2015, he witnessed Mr Rafferty and Mr Waldock dry humping Mr Okoro.
In around April 2016, he witnessed Mr Rafferty and Mr Waldock dry humping Mr Hannett in the feather room.
He had seen Mr Collett dry hump another worker whose name he could not remember.
He witnessed other employees engage in the same conduct, for example Mr Collett had dry humped Mr Levaai.
He was subjected to dry humping a number of times when replacing plucker fingers. For example, at the beginning of August 2015, at the end of the night, Mr Rafferty and Mr Waldock approached him from either side of his body when he was replacing the plucker fingers and start dry humping him on either side of his body.
He was usually first grabbed at the hips, then the perpetrator ground or gyrated their genital region on his buttocks. The perpetrator would move their body with such force against his that he could feel the crotch and genitals of that person against his buttocks.
He was unable to see them coming and unable to protect himself from an attack.
When Mr Rafferty and Mr Waldock performed the simulated genital sex act on him together, they came at him from either side and forcefully rubbed their crotch and genital regions against his hips or his upper thighs at the same time.
The dry humping from behind happened more than the dry humping from the side.
Each dry humping episode would last between 5 to 15 seconds.
Each time Mr Rafferty and Mr Waldock would dry hump Mr Ford they would laugh, and it appeared that they thought their actions were funny.
When there were more people around, the episodes would be longer.
The simulated genital sex acts occurred at least once every week.
He did not invite the conduct and did not want it to happen.
He would tell the perpetrator to “piss off” or that they were crazy and asked them “in an angry voice” what made them think they could behave this way. However, it did not deter them.
He had a worse reaction to this conduct than the conduct alleged in Agreed Issue 1(a).
740 Relevantly, the respondents objected to evidence of Mr Ford to the effect that:
he had allegedly witnessed others being dry humped; and
Mr Waldock had told him about Gay Fridays and what workers did on Gay Fridays.
741 The objections were on the basis of hearsay, unfairly prejudicial and misleading evidence, and frivolous and vexatious evidence.
742 In my view this evidence is admissible because:
the evidence concerning Mr Ford’s alleged observations of co-workers being allegedly dry humped was direct evidence on his part;
while Mr Ford’s evidence concerning words of Mr Waldock is hearsay, I consider there is potentially probative value in that evidence;
the evidence is not unfairly prejudicial to the respondents or misleading;
the fact that the evidence is admissible does not mean that I accept it; and
the respondents have had ample opportunity to meet this evidence in their own evidence and submissions.
743 Mr Ford also gave evidence during re-examination that Mr Rafferty had told Mr Ford that he had been dry humped at Inghams, which was why Mr Ford contacted Mr Rafferty – because he felt sympathy for Mr Rafferty and wanted him to tell the truth to put a stop to such conduct (transcript pp 410-411).
Mr Bhardwaj
744 Mr Bhardwaj, in the First Bhardwaj Affidavit, relevantly deposed as follows:
Mr Rafferty would come up and pretend to hug him, trapping his arms by his sides. Whilst Mr Rafferty was doing this, Mr Waldock would come up and touch and rub his buttocks. This conduct occurred on six or seven occasions.
Mr Rafferty and Mr Waldock would regularly approach him from behind, grab his hips and rub their crotch and genitals up against his buttocks. He could feel their genitals through their clothes.
It looked like they were pretending to have sex with him.
They would look at each other and laugh when they did this.
Noora and a group of Korean workers regularly approached other workers and would pretend to have sex with them by rubbing their genitals on them.
He saw Mr Rafferty dry hump Mr Lucht. They both seemed to find the behaviour amusing and laughed when it happened.
745 In the Second Bhardwaj Affidavit (sworn 3 August 2018), Mr Bhardwaj denied that he had dry humped Mr Rafferty as Mr Rafferty alleged.
746 In the Third Bhardwaj Affidavit (sworn 14 June 2019), Mr Bhardwaj relevantly deposed by reference to his evidence in the First Bhardwaj Affidavit:
He witnessed Noora and a group of Korean workers engage in the conduct in the feather room, when he was in there at the end of his shift helping to clean.
He had seen Mr Rafferty dry hump Mr Lucht in the feather room, when he was in there at the end of his shift helping to clean. He saw Mr Rafferty do this to Mr Lucht twice, though he could not recall the dates.
He had also seen Mr Waldock and Mr Phillips separately dry hump Mr Lucht on one occasion each.
747 Mr Bhardwaj also gave evidence during cross-examination that he had made a complaint to Inghams’ management about Mr Phillips and Mr Waldock having “tied [him] up from the back, humping” (transcript p 172 ll 22-29).
Mr Ogg
748 Mr Ogg, in the First Ogg Affidavit, relevantly deposed as follows:
He had seen employees engage in dry humping each other against the washing sink.
“Dry hump” was a well-known expression at Inghams and referred to one employee rubbing their genital area on the body of a fellow employee, pretending to have sex.
Since commencing work at Inghams in 2008, he had seen this behaviour most days, recalling that the workers in the Red Area would dry hump each other on Gay Fridays.
749 Mr Ogg, in the Third Ogg Affidavit, relevantly deposed:
He had witnessed Mr Rafferty, Mr Phillips and Mr Waldock engage in the conduct at least twice per week.
The conduct was also engaged in by Mr Hill and Mr Macarthur, who were no longer employees of Inghams.
Mr Rafferty, Mr Waldock and Mr Phillips dry humped him approximately twice per week.
About twice per week, Mr Rafferty and Mr Waldock had dry humped each other in the feather room at the end of production, whilst workers were replacing broken plucker fingers.
Mr Flanders had watched Mr Waldock and Mr Phillips dry hump each other.
Mr Johnson had watched Mr Rafferty and Mr Waldock dry hump each other.
750 Mr Ogg, in the Fourth Ogg Affidavit, relevantly deposed:
He had heard workers use the term “dry hump” to refer to the conduct he had described in the First Ogg Affidavit.
He had also heard the term “humping” used to describe the same conduct.
He had been dry humped several times by different workers.
The dry humping happened in the feather room.
The main people who engaged in the conduct towards him were Mr Rafferty, Mr Waldock and Mr Phillips.
He witnessed Mr Waldock, Mr Rafferty and Mr Phillips dry hump Mr Ford on at least one occasion in the feather room.
Mr Ford disclosed to him numerous times that he was having problems at work, that he had been sexually harassed by Mr Waldock and Mr Rafferty, and that he did not find their behaviour funny.
751 Annexed to the First Ogg Affidavit was a typed statement dated 29 November 2016 that Mr Ogg made during the workplace investigation. That statement, signed by Mr Ogg, read: “I had never witnessed anyone sexually assaulting Richard either in work areas, or the men’s locker room in the following manner… staff dry humping Richard…”. However, in the Fourth Ogg Affidavit, Mr Ogg deposed that he did not recall making that statement to the investigator, that the statement was untrue, and that he did not know why he signed it.
752 The respondents objected to some of this evidence of Mr Ogg. However, I consider that his evidence is admissible as direct evidence based on alleged observations of Mr Ogg.
753 During cross-examination, Mr Ogg gave the following evidence:
Mr Ogg, I suggest to you that at Ingham’s in 2015, ’16 - - -?---Yes.
Brendan [sic] Waldock, Michael Rafferty and Wade Phillips were – they did not engage in dry-humping you or other employees in your sight?---I would have to disagree.
Okay. I suggest to you that gay Fridays, as you’ve referred to it, was something which occurred at Inghams’ long before 2015?---Yes. That’s correct.
And it’s something which had stopped happening at Inghams’ long before 2015?---Yes
That the dry – gay Fridays took the form of dry humping and patting on the bum?---Yes.
(Transcript pp 461-462.)
Mr Ly
754 In the First Ly Affidavit, Mr Ly relevantly deposed as follows:
He had seen Mr Rafferty, Mr Mole and Mr Waldock inappropriately hug another staff member.
He had seen Mr Rafferty and Mr Waldock dry hump Mr Ford, sometimes one at a time and at other times together.
Mr Waldock and Mr Rafferty would pretend to perform sex acts on him when he bent over during such times that he worked with them in the feather room.
755 Mr Ly, in the Third Ly Affidavit, relevantly deposed, by reference to the evidence he gave in the First Ly Affidavit:
Mr Rafferty and Mr Waldock had inappropriately hugged another staff member on many occasions, and at least once per week, in the feather room.
He witnessed the conduct when Mr Ly was in the feather room at the end of his shift helping with the cleaning.
The hugging was inappropriate because they would approach a worker from behind and wrap their arms around the worker, pinning the worker’s arms to their sides. The workers would then try to wriggle or wrestle free of the grip.
Mr Rafferty and Mr Waldock dry humped Mr Ford on a few occasions, but he could not recall the dates.
The conduct occurred in the feather room, when Mr Ly was in there at the end of his shift helping with the cleaning.
Mr Waldock and Mr Rafferty would pretend to perform sex acts on him in the hanging room, but most of the time in the feather room.
756 The respondents objected to this evidence of Mr Ly. However, I consider that his evidence is admissible as direct evidence based on alleged observations of Mr Ly.
757 Mr Ly also gave the following evidence during cross-examination in relation to his explanation of inappropriate hugging:
When you talk about inappropriately hugging another staff member, Mr Ly – what do you mean by that? That’s at paragraph 6D of what you’ve just been looking at?---Hugging another member by grabbing him and rubbing their genitals against him and dry-humping. That’s inappropriate.
Okay. And when do you say that occurred?---When I worked on the afternoon shift.
And – sorry; what was your evidence about when you worked on the afternoon shift? Was it from 2014?---Yes.
(Transcript p 478 ll 26-34.)
Evidence of the respondents
Mr Rafferty
758 Mr Rafferty, in his affidavit sworn 7 July 2018, relevantly deposed:
Gay Fridays involved conduct such as employees rubbing bodies against each other.
From early on in his employment, employees engaged in the conduct of dry humping each other (although without physically touching each other below the waist area) as part of the conduct associated with, or following on from, Gay Fridays.
Conduct associated with, or following on from, Gay Fridays was engaged in on a regular basis by a number of different employees working on the afternoon or night shift in the Red Area.
He had dry humped other employees (however, with the only contact being at chest height) in a joking and consensual manner.
He had mainly engaged in the relevant conduct in the first few years of his employment, before Mr Ford began working at Inghams.
He had mainly engaged in the relevant conduct with his close friends, Mr Waldock and Mr Phillips.
He had occasionally engaged in the relevant conduct with other employees, but only if they “had done the same sort of thing to me first”.
After he left the hanging room and went to work on the forklifts in about 2010 or 2011, he did not experience, or engage in, the conduct as much. After this time, he mainly engaged in the conduct with Mr Waldock and Mr Phillips, and perhaps occasionaly engaged in the conduct with employees who had done the same thing to him first.
He accepted that other employees would have seen himself, Mr Waldock and Mr Phillips engage in such conduct.
He denied that he had dry humped anyone who had not dry humped him.
He denied that he had dry humped Mr Ford, because Mr Ford never engaged in the relevant conduct towards Mr Rafferty, and he knew Mr Ford did not like it because he did not engage in the conduct himself and because of the incident where he had slapped Mr Ford on the buttocks.
759 Mr Rafferty gave evidence during cross-examination that he gauged a person’s consent to the conduct by whether they had ever engaged in the conduct towards him (transcript p 562 ll 1-30).
760 Mr Rafferty also gave oral evidence in relation to having first been subjected to dry humping early in his employment, and being shocked when it occurred, but stated that he took it as a joke as the perpetrators were trying to be friendly (transcript p 517 ll 1-15).
761 In relation to conduct Mr Rafferty perceived to be dry humping, in summary, Mr Rafferty deposed during cross-examination:
He had never seen someone rub their genital area against another person.
When Mr Waldock would dry hump him, he would be hugging Mr Rafferty and rubbing his chest on Mr Rafferty’s back. Mr Rafferty could not feel Mr Waldock’s crotch against him.
He had never felt anyone’s genitalia against his body at Inghams.
The perpetrators’ hips could be gyrating during the dry humping, but the buttocks of the perpetrator would be as far away as possible.
He and Mr Waldock would not rub their “bottom half” on each other because that would make them feel uncomfortable.
His form of dry humping did not involve pushing his genitals towards the person.
(Transcript p 524 ll 14-36; 591 ll 21-32.)
Mr Collett
762 Mr Collett, in his affidavit affirmed 6 July 2020, relevantly deposed:
He had never seen nor heard of any behaviour at Inghams that could be described as sexual harassment, discrimination or bullying, but had observed behaviour of that kind from Mr Bhardwaj and Mr Parenko.
He had never witnessed any sexual harassment towards Mr Ford by Mr Rafferty. He did not think Mr Rafferty was capable of sexual harassment.
He denied that he had ever engaged in dry humping.
763 During cross-examination, Mr Collett stated that he had never seen dry humping at Inghams (transcript p 813 ll 32-38).
Mr Phillips
764 Mr Phillips, in his affidavit affirmed 6 July 2018, relevantly deposed as follows:
He had neither seen nor heard of any behaviour at Inghams – except for the incident between Mr Ogg and Mr Hill and the incident where an employee threw a dead bird at another worker – that could be viewed as sexual harassment, discrimination or bullying.
He had never been approached and grabbed by the hips by Mr Rafferty, nor anyone else, at Inghams whilst he was bending over.
He denied that he had ever touched another worker on or near their buttocks, other than to pat another worker on the backside.
765 During cross-examination, Mr Phillips gave the following relevant oral evidence:
Gay Fridays had not included dry humping conduct.
He had never seen dry humping occur at Inghams.
He agreed that he understood dry humping to refer to when “[o]ne bloke comes up to another and starts rubbing himself against the other bloke…[i]n a way that looks like the bloke doing the rubbing is having sex with the other person”.
He agreed that he understood dry humping to involve physical touching and that “the whole point of it is to use the genital area in that physical touching, with the clothes on”.
He had never engaged in dry humping.
He had never seen Mr Waldock and Mr Rafferty dry hump each other, or engage in the conduct with other workers.
(Transcript pp 675-677.)
Mr Okoro
766 Mr Okoro, in his affidavit affirmed 5 July 2018, denied ever witnessing any sexual harassment at Inghams.
767 Mr Okoro also denied that he was ever dry humped by Mr Rafferty or Mr Waldock. Mr Okoro provided a witness statement in the workplace investigation to the effect that he had never seen another staff member be dry humped.
Mr Levaai
768 During cross-examination, Mr Levaai gave evidence that:
He had never seen dry humping at work, but he knew what it was because “it’s all on Facebook and medias – Youtube and that”.
He had never seen employees hug each other, but it would not be something he would notice.
(Transcript p 1099 ll 9-37.)
Mr Varghese
769 Mr Varghese, in his affidavit affirmed 5 July 2018, denied being dry humped by Mr Rafferty and Mr Waldock as Mr Ford alleged. He further deposed that he had never seen nor heard of any inappropriate behaviour, such as dry humping, occurring at Inghams.
770 During cross-examination, Mr Varghese gave the following evidence:
And do you know what dry humping is?---Before I don’t know, but when I read this all, I understood. Yes.
When you read – when you read what did you understand?---Something ..... Richard affidavit.
Just which bit did you understand dry humping to be?---Some kind of sexual – sexual acting.
Well, you just said, when you read this, which – were – are you referring to your affidavit?---Which one?
I might have misunderstood you. Sorry, Mr Varghese.
HER HONOUR: I think he’s referring to Richard’s affidavit, I think he said.
THE WITNESS: Yes.
MR REIDY: Are you saying Richard’s affidavit?---Yes.
Okay. Sorry. So, with dry humping, do you understand that to be a man coming up and putting their body against another man and rubbing up and down and in particular rubbing the area where their penis and testicles – their groin – are, against that man; do you understand that?---Yes. I think so.
Yes. That’s what’s called dry humping?---In my best knowledge, like that. Yes.
And do you understand what you would call something where one man puts his chest up against another man, puts his legs out away from the other man and moves his hips backwards and forwards at the same time – backwards and forwards without touching the other man? Do you know what that is? No. You shook your head. I take that to mean no?---Sorry. I – I’m just thinking what – what is called. I don’t know what’s called.
Okay. Anyway, you say you’ve never seen anything like that?---I didn’t see.
(Transcript pp 997- 998.)
Mr Waldock
771 Mr Waldock, in his affidavit affirmed 5 July 2018, relevantly deposed:
He denied ever coming behind Mr Bhardwaj and touching and rubbing his buttocks whilst Mr Rafferty had pretended to hug him.
He denied he ever grabbed Mr Bhardwaj’s hips and rubbed his crotch against Mr Bhardwaj.
He denied that he had ever touched or physically interacted with Mr Ford.
He denied that he pretended to perform sex acts on Mr Ly.
He denied that he ever dry humped co-workers.
He denied that he ever engaged in dry humping Mr Okoro as alleged by Mr Ford.
772 During cross-examination, Mr Waldock denied that he had ever dry humped Mr Ogg (transcript p 620 ll 20-21) or that he and Mr Collett had ever dry humped Mr Levaai as Mr Ford alleged (transcript p 622 ll 11-25).
773 Mr Waldock also gave the following relevant oral evidence during cross-examination:
MR REIDY: … You know what dry humping is?---I have a fair idea on what it could mean – yes.
Well, tell me what it is?---It would be to push yourself against somebody whilst wearing clothes.
And do what?---Hump as it says.
That is, make it look like you’re having a sexual form of interaction with them?---I guess so, yes.
Well, pretending to have sex with your clothes on?---Yes.
Is that the simple way you understand it?---Yes.
And Mr Rafferty says – well, you don’t understand dry humping in this way, do you? Where a person puts their chest up against another person, sticks their bottom out and gyrates their hips away from another person. That’s not the answer you gave?---No, that’s not what – that’s not what I consider it as but someone could.
Yes. And Mr – and have you – and is your evidence on the latter depiction, which is putting your chest up against someone, rubbing someone’s chest, having your legs away from them with your bottom poking out and gyrating your hips – you don’t understand that to be dry humping?---No, as I said, I don’t personally – no.
No. And you’ve never done such a thing?---No.
But Mr Rafferty says that he had seen you do it?---I can’t answer that because I didn’t see myself do it.
You didn’t see yourself doing it?---Well, I don’t remember doing it – no.
Could it be possible that you did it?---No.
Not possible at all?---No.
And the version of dry humping that you understand, which I suggest is the common understanding?---Yes.
Have you ever done that to anyone anywhere?---No.
In the workplace? Have you done it at Inghams?---No.
Because we will go through other things that have been said but have you any explanation of why Mr Rafferty would say that you did this?---No, I don’t.
(Transcript p 603 ll 2-46.)
Mr Lucht
774 In his affidavit affirmed 10 July 2018, Mr Lucht denied that he was ever dry humped by Mr Rafferty, or anybody else, at Inghams during his employment. He also denied ever seeing such conduct occur at Inghams.
775 During cross-examination, Mr Lucht gave evidence that he had never seen Mr Rafferty nor Mr Waldock dry hump anyone, including each other (transcript pp 1041-1042).
Mr Flanders
776 During cross examination, Mr Flanders gave the following relevant evidence:
So you’ve accepted that dry humping, if that were to occur in a workplace, is a serious matter?---Yes.
Would it be something where you would just say to employees, “Cut it out. Stop it. Go back to work”?---Yes.
And then just leave it at that?---Yes.
Okay. Now, you know about the incident concerning – Vaiyama, is his nickname Ice?---Yes.
So I will use Ice for fear of mispronunciation. You know that it’s said that you walked in on Anthony Collett and Brenden dry humping Ice in the feather room?---No.
Okay. I’m not asking you whether it happened, I’m asking you know that has been said?---Yes.
And that’s the sort of thing if you saw it happen that you would just say, “Cut it out and get back to work”?---That’s a little bit – yes. Yes, I would tell them to cut it out.
…
Right. And Mr Ogg says that you were present when Mr Waldock and Mr Phillips were dry humping each other; you never seen that?---No.
But that’s one of the things you would just say, “Cut it out, fellows. Get back to work”?---Beg your pardon?
That’s one of the things if you saw it you would just say, “Cut it out, fellows. Get back to work”?---It depends – like, some of those things I would have to bring up to my supervisor as well, but - - -
(Transcript pp 1070-1071.)
Mr Hannett
777 In his affidavit affirmed 12 July 2018, Mr Hannett denied that he was ever dry humped by Mr Waldock or Mr Rafferty, either together or separately. He also deposed that he would remember if employees ever engaged in such conduct towards him.
Consideration
778 In written and oral submissions the applicant contended, in summary:
The evidence of Mr Ly and Mr Bhardwaj corroborated Mr Ford’s evidence, as they deposed that they had seen Mr Rafferty and Mr Waldock dry hump Mr Ford in the feather room.
This was a continuing behaviour over a period of time.
Mr Ford had a vivid and consistent recall of events. He was able to correct Counsel for the respondents when she incorrectly put to him that Mr Rafferty and Mr Waldock had dry humped Mr Levaai.
There is evidence of a culture or system of entrenched sexual harassment at Inghams, making it highly probably that the conduct alleged did occur. It supports an inference being drawn that dry humping was an accepted and well-recognised aspect of the culture.
The tendency evidence makes it highly probable that Mr Rafferty and Mr Waldock engaged in the conduct as Mr Ford alleged.
Mr Rafferty’s evidence was an admission that conduct in the commonly understood form of dry humping occurred.
779 In written and oral submissions the respondents said, in summary:
Mr Rafferty gave evidence that the dry humping conduct happened “not very regularly” and essentially tapered off during the time that he was employed at Inghams.
Some employees, but not all, at times engaged in dry humping each other, consensually, as a joke and without any sexual connotations.
After Mr Chan started working in a supervisory role at Inghams and the culture at Murarrie changed, simulated sex acts were no longer common in the workplace.
780 In my view the applicant has not substantiated this aspect of his case. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, and for the following reasons.
781 First, Mr Ford’s evidence in respect of this aspect of his claim is not credible. In particular:
I consider that, if Mr Ford were being dry humped at least once per week in the feather room or locker room, by Mr Rafferty and/or Mr Waldock, many co-workers would have seen it and have been able to give detailed evidence about having seen it. The layout of the feather room, for example, appears to be open plan (see redacted affidavit of Mr Ford sworn 4 June 2018, Annexure RF-3). It is implausible that other co-workers would not have seen this conduct, particularly in light of the prolongation of the conduct as claimed by Mr Ford. Indeed, Mr Levaai gave evidence (transcript p 1106 ll 26-46) that, had he seen such conduct, he would remember it as he would have been offended by it as a matter of culture. The only witnesses who allegedly saw Mr Waldock and Mr Rafferty dry humping Mr Ford were Mr Ly and Mr Ogg, whose evidence I do not consider reliable (I will return to this point later).
I consider it implausible that Mr Rafferty and Mr Waldock would physically restrain Mr Ford, as Mr Ford claimed, and rub their genitals against him for periods of up to 15 seconds at a time. I consider it likely that, if Mr Ford were being assaulted in this fashion, repeatedly, and over such a lengthy period of time, either Mr Ford would have complained contemporaneously, or someone else would have commented or complained, or the leading hands or supervisors would have said something. However, none of this happened. Mr Lucht, who was a leading hand and a back-up supervisor at relevant times, gave evidence that he would not have tolerated such conduct on the factory floor. Mr Johnson, who was an acting supervisor, gave evidence that he was “everywhere” on the factory floor and never saw Mr Rafferty, Mr Waldock, Mr Phillips or Mr Mole do anything inappropriate (transcript p 862 ll 31-46).
Mr Waldock appeared to be a friend of Mr Ford, with whom Mr Ford willingly socialised outside of working hours until at least July 2016. It is implausible that Mr Ford would have tolerated Mr Waldock’s company outside of work, much less sought Mr Waldock as a drinking companion as the evidence indicated (transcript p 128 ll 4-11), if Mr Waldock was persistently assaulting and humiliating him as Mr Ford alleged.
782 Ultimately, in respect of this aspect of Mr Ford’s claim, I prefer the evidence of Mr Rafferty, Mr Waldock, and the respondents’ witnesses to the evidence of Mr Ford.
783 Second, the applicant makes much of the detail recalled by Mr Ford, and the high degree of specificity in evidence of Mr Ford, as an important issue going to his credit concerning Agreed Issue 1(b). This detail in Mr Ford’s evidence was similarly present in respect of his allegations of witnessing dry humping of other employees, which is the subject of other aspects of his claim, in particular Agreed Issues 1(m) and 1(o) to which I will shortly turn.
784 Mr Ford’s allegations were strongly denied by Mr Rafferty and Mr Waldock, who I consider to be more credible witnesses than Mr Ford. Notwithstanding the level of detail in Mr Ford’s evidence in relation to this aspect of his case, I am not persuaded that the specificity of his evidence is a reason to accept as credible his evidence concerning his alleged dry humping by Mr Rafferty and Mr Waldock.
785 Mr Ford gave similarly detailed evidence of dry humping of other workers by, inter alia, Mr Rafferty and Mr Waldock. However, for present purposes I note that, notwithstanding the high degree of specificity of Mr Ford’s evidence concerning dry humping of other workers, all of Mr Ford’s claims that he had witnessed other workers being dry humped by Mr Rafferty and Mr Waldock, or other co-workers, were categorically denied by the persons allegedly involved.
786 An example of this, with a corresponding high degree of specificity of evidence on the part of Mr Ford, is the account, at [242]-[247] of his redacted affidavit sworn 4 June 2018, of Mr Hannett being supposedly dry humped by Mr Rafferty and Mr Waldock. In respect of this evidence:
Mr Hannett categorically denied that this incident occurred at all.
Mr Rafferty and Mr Waldock categorically denied that this incident occurred at all.
No other witness gave evidence that the incident occurred (despite Mr Ford stating that there were other co-workers in the vicinity who would have witnessed the incident).
Mr Ford’s account suggested powerlessness on the part of Mr Hannett. However, as I have already observed, Mr Hannett was clearly a mature man who struck me as confident, and further in my view was a man who would neither tolerate the behaviour alleged by Mr Ford for 10 seconds, nor meekly walk away in the humiliated fashion that Mr Ford described in the event of such alleged treatment by co-workers.
Mr Ford’s account also suggested powerlessness on the part of Mr Hannett as a supervisor, for which there is no evidence. Rather, such evidence as is before the Court supports a finding that the process workers at Murarrie respected the authority of supervisors, and particularly Mr Hannett, who (according to evidence of Mr Rafferty) punished workers for conduct of which he did not approve.
I am not persuaded that Mr Hannett was intimidated by Mr Rafferty and/or Mr Waldock because Mr Rafferty and Mr Waldock were in some type of friendship “clique” as submitted by the applicant. Indeed, Mr Rafferty gave evidence that Mr Hannett had “a considerable position of power” over him (see transcript p 538 l 10). In my view the suggestion that Mr Hannett was intimidated by Mr Rafferty and Mr Waldock, such as to tolerate the behaviour alleged by Mr Ford, is absurd.
Mr Ford’s description of Mr Rafferty and Mr Waldock grabbing Mr Hannett’s hips and legs, and restraining him, is implausible.
As I have also already noted, at the time of giving his evidence (including under cross-examination), Mr Hannett no longer worked for Inghams, and to that extent there was no reason for Mr Hannett to be other than truthful in denying that this alleged incident ever took place.
787 I also note that, notwithstanding Mr Ford’s allegations:
Each of Mr Okoro and Mr Varghese categorically denied Mr Ford’s claims that they were dry humped by Mr Rafferty and Mr Waldock at any time.
Mr Flanders categorically denied Mr Ford’s claim that he walked in on Mr Collett and Mr Waldock dry humping Mr Levaai in the feather room.
Mr Levaai categorically denied Mr Ford’s claim that Mr Collett had ever dry humped him.
Mr Collett categorically denied Mr Ford’s claim that he had ever dry humped Mr Levaai, stating “[n]o way in the world… [y]ou knew who Ice Man was, you would not muck around with that gentleman”.
788 I have no reason to doubt the truth of this evidence on the part of these witnesses or their rejection of Mr Ford’s allegations.
789 In my view this significantly undermines Mr Ford’s credit, not only in respect of his alleged witnessing of dry humping, but his allegations of experiencing it himself.
790 Third, in relation to the evidence of Mr Bhardwaj, Mr Ogg and Mr Ly in support of Mr Ford’s claims of being dry humped by Mr Rafferty and Mr Waldock, I make the following observations.
791 In relation to evidence of Mr Bhardwaj: although Mr Bhardwaj alleged that he was personally dry humped by Mr Rafferty and Mr Waldock (which was denied by both Mr Rafferty and Mr Waldock), he also, in the First Bhardwaj Affidavit, deposed that he saw Mr Rafferty dry hump Mr Lucht. Mr Lucht categorically denied that that had ever occurred. I have no reason to doubt the denial of Mr Lucht.
792 With this in mind, and taking into account my earlier expressed views concerning the credit of Mr Bhardwaj, I do not accept the evidence of Mr Bhardwaj in respect of alleged dry humping of any workers at Inghams to be reliable.
793 In relation to evidence of Mr Ogg: although Mr Ogg alleged that Mr Flanders was present when Mr Waldock and Mr Phillips were dry humping each other, Mr Flanders categorically denied that allegation. I have no reason to doubt the denial of Mr Flanders.
794 In addition to my general credit findings concerning Mr Ogg, I have particular concerns about the credibility of Mr Ogg’s evidence in respect of this issue. I note the inconsistencies between his statement in the workplace investigation, and his evidence in this case. Further, in light of his answers to questions during cross examination, there is a very real possibility that Mr Ogg’s discussions with Mr Ford in the months before the trial, which apparently included Mr Ford’s perceptions of admissions on the part of Mr Rafferty, have, in turn, contaminated Mr Ogg’s own evidence.
795 In relation to evidence of Mr Ly: I have already observed that Mr Ly was a witness of some credit. However, Mr Ly did not particularise his alleged witnessing of dry humping of Mr Ford by Mr Rafferty and/or Mr Waldock, including by reference to any dates. In circumstances where the conduct of which Mr Ly gave evidence is not supported by any other witness of credit, and where details of his evidence are at a fairly high level of generality, I do not accept his evidence that Mr Rafferty and/or Mr Waldock dry humped Mr Ford.
796 Finally, I am satisfied that there may have been conduct in the nature of dry humping at Inghams during the time that Mr Ford worked there. However, I consider that, if such conduct occurred, it would have been confined to a small group of co-workers who were friends, specifically Mr Rafferty, Mr Waldock and Mr Phillips, who had known each other and worked together at Inghams for a long time, and were clearly comfortable engaging in such conduct towards each other as a joke.
797 In my view this aspect of Mr Ford’s claim is not substantiated.
Agreed ISSUE 1(c): The Second Respondent or the Third Respondent engaged in the conduct of performing acts of simulated oral sex on the Applicant in the period from around August 2015 to about September 2016, in the feather room and the locker room, as alleged in paragraph 21 of the RFASOC.
798 This issue is referable to paras 21, 23 and 24 of the RFASOC, which provide:
Simulated oral sex acts – Rafferty and Waldock
21. From about August April or May 2015, Rafferty and Waldock performed acts of simulated oral sex on Mr Ford (the “oral sex conduct”)
Particulars
(a) The oral sex conduct occurred in the feather room and the locker room.
(b) The oral sex conduct happened on a weekly basis.
(c) On occasions other co-workers were present and they either laughed or appeared to ignore the oral sex conduct.
(d) The conduct in the feather room generally occurred when Mr Ford was standing up working doing the plucker fingers with his arms raised above his head and leaving his body exposed and unable to protect himself and when one of Rafferty or Waldock would bend down and simulate oral sex.
(e) Rafferty and Waldock laughed when they engaged in the oral sex conduct.
…
23. Mr Ford:
(a) Did not solicit the conduct pleaded in paras 21 and 22 above;
(b) Communicated to Rafferty and Waldock that the conduct was unwelcome, particulars of which are at paragraph 16(b) above.
24. The conduct of Rafferty and Waldock pleaded in paras 21 and 22 above caused Mr Ford the symptoms and reactions in paragraph 20 above.
799 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 21, 23 and 24 of the RFASOC, with the exception of para 23(a), which the third respondent neither admitted nor denied.
800 In the amended defence of the second respondent, he denied paras 21, 23 and 24 of the RFASOC insofar as those paras related to him.
Evidence of the applicant
Mr Ford
801 Mr Ford did not give oral evidence of substance at the hearing in relation to this issue. He relevantly deposed in his redacted affidavit sworn 4 June 2018 at [170]–[177]:
Mr Rafferty and Mr Waldock, in about late April or May 2015, began the simulated oral sex conduct. Mr Ford recalled that it happened after his birthday and after Easter that year.
The conduct occurred mainly in the feather room, but also in the locker room, and happened at least on a weekly basis.
The conduct would occur when he was working in an exposed position with his arms raised, replacing the plucker finders at the end of production, or when operating the plucker fingers.
Mr Rafferty and Mr Waldock would bend over in front of Mr Ford at his waist, with their face pointed towards his crotch approximately eight inches away, and hold onto either a rubber finger or the gun that puts on the rubber fingers and pretend to suck on these, simulating performing oral sex. It lasted no more than 15 seconds.
Mr Rafferty and Mr Waldock would also bend down on the pretext of grabbing something out of the basket of plucker fingers and then suddenly simulate oral sex instead.
When other workers were present, some would laugh and others would ignore the conduct.
They should have been aware from his reaction that he was upset, angry and unhappy with the conduct and did not want them to do it.
802 The respondents objected to Mr Ford’s evidence that Mr Rafferty and Mr Waldock should have been aware he did not like the conduct by his reaction. The objection was made on the basis that such evidence was inadmissible opinion evidence, and unfairly prejudicial and misleading.
803 I have already referred to ss 76 and 78 of the Evidence Act and the observations in Lithgow City Council v Jackson (2011) 244 CLR 352 in relation to opinion evidence. I consider Mr Ford’s opinion in relation to whether Mr Rafferty and Mr Waldock should have been aware of Mr Ford’s emotions from his reaction as an opinion necessary to obtain an adequate account of his perception of the matter. I do not consider this evidence inadmissible as unfairly prejudicial to the respondents or misleading to the Court.
Mr Ly
804 Relevantly, Mr Ly deposed in the First Ly Affidavit as follows:
6. As I stated in paragraph 6 of my statement Annexure “SL 1”, I have seen [Mr Rafferty, Mr Waldock and Mr Mole] do the following things:
…
(g) Pretend to perform oral sex on another staff member.
…
10. Specifically in relation to Richard, I recall seeing Rafferty and Waldock touch Richard inappropriately when he I was working in the feather room. I have seen Rafferty and Waldock do the following acts to Richard:
…
(h) Pretending to have oral sex with Richard
…
12. I recall seeing these things would happen to Richard at least once or twice a week. When Rafferty and Waldock did these things to Richard he looked really angry and upset about it. I heard Richard say to Rafferty and Waldock to stop touching him but they did not stop.
13. Richard complained to me about Rafferty and Waldock and how he hated the way they behaved towards him. I recall Richard expressed to me his concerns and upset about the conduct…
805 Mr Ly referred to this evidence in the Third Ly Affidavit, stating that he had seen Mr Rafferty and Mr Waldock engage in the conduct on many occasions (and at least once per week), and had seen them engage in the conduct towards Mr Ford on a few occasions, but could not recall the dates.
806 The respondents objected to this evidence on the basis that it was hearsay, opinion and unfairly prejudicial and misleading.
807 In my view the majority of Mr Ly’s evidence was not hearsay nor an opinion, but Mr Ly’s direct evidence of what he allegedly saw. Insofar as the respondents objected to Mr Ly’s evidence on the basis that it was unfairly prejudicial and misleading, as the evidence was directly relevant to a fact in issue, the appropriate course is to admit the evidence. Whilst there is no date or time provided in relation to the evidence, such absence of detail may appropriately go to the weight given to that evidence. The evidence that Mr Ford complained to Mr Ly is admissible as evidence of that fact, but is hearsay evidence in relation to the truth of the complaints Mr Ford made to Mr Ly.
808 Mr Ly also gave oral evidence that workers would pretend to perform oral sex on another staff member in the hanging room (transcript p 479 ll 1-5). He did not refer to which employees engaged in the conduct in the hanging room nor the time period in which he witnessed this conduct. In my view, in the absence of particularisation, this evidence should be given little to no weight.
Mr Bhardwaj and Mr Ogg
809 Mr Bhardwaj, in his affidavits, did not depose to witnessing (nor being subjected to) simulated oral sex conduct. This was despite his evidence that he was regularly asked to work in the feather room at the end of his shift to help with the cleaning and to replace plucker fingers.
810 Similarly, Mr Ogg did not depose in either his affidavits or during cross-examination to witnessing (or being subjected to) employees pretending to perform oral sex on Mr Ford, each other, or on him.
Evidence of the respondents
Mr Rafferty
811 Mr Rafferty, in his affidavit sworn 7 July 2018, deposed that:
From early in his employment (commencing in 2008) he had seen employees engaging in simulating oral sex, without physically touching each other, on a regular basis as part of the conduct associated with, or following on from, Gay Fridays.
He had engaged in pretending to have oral sex, or making oral sex gestures, at employees in a joking and consensual manner, mainly in his first few years of employment before Mr Ford commenced.
He primarily engaged in the conduct with his close friends Mr Waldock and Mr Phillips.
He would sometimes engage in the conduct with other employees, but only if they had done the same sort of thing to him first.
Sometime in 2010 or 2011, when he went to work on the forklift, he did not experience, nor engage in, the conduct as much. From this time onwards, he would only occasionally engage in the conduct with employees other than Mr Waldock or Mr Phillips in a joking manner, and only if they had done the same sort of thing to him first.
He denied engaging in the conduct with Mr Ford.
812 Mr Rafferty agreed in cross-examination that:
when he started at Inghams in 2008, the “behaviours”, including pretending to have oral sex, were rampant and went on all the time in the Red Area;
he had seen oral sex gestures in the feather room, though he did not specify a time period;
over time he had become used to the conduct; and
he knew the conduct was wrong, contrary to company policy and sexual harassment.
813 Mr Rafferty also gave oral evidence that:
when he was subjected to simulated oral sex for the first time he did not take it personally as he was trying to fit in;
he had never seen, at least not that he could remember, Mr Waldock perform simulated oral sex on Mr Ford;
he had never himself subjected Mr Ford to such conduct;
he did not remember the simulated oral sex comprising of the actions described by Mr Ford, rather, he remembered workers indicating a sideways movement of a not fully clenched fist going back and forth;
he had seen simulated oral sex (in the form of the not fully clenched fist jerking motion) in the feather room;
when workers were picking up plucker fingers, one worker would simulate oral sex to the worker on the ground and that worker would then do the same back;
he did not remember who was involved or any exact instance of the conduct; and
the conduct did not happen very regularly in the feather room, it happened more frequently at the start of his employment and became infrequent towards the end of his employment.
Mr Waldock
814 Mr Waldock in his affidavit denied that he engaged in simulated oral sex conduct towards Mr Ford as Mr Ford alleged in his affidavit.
815 Mr Waldock gave oral evidence to the effect that:
simulated oral sex involved a gesture where the hand and fingers are curled in a tube-like shape, waving the elbow back and forth so that the hand comes in line roughly with the shoulder;
he would have engaged in making an oral sex gesture with Mr Rafferty and Mr Phillips, but not anybody else;
he would not have made an oral sex gesture at Mr Ford because he did not know him as well as the other people who had worked there for many years;
Mr Ford could possibly have seen him make oral sex gestures at Mr Rafferty and Mr Phillips; and
he had not seen someone get in front of another employee working on the stand and use a plucker finger as a simulated fellatio prop.
Mr Phillips
816 Mr Phillips deposed in his affidavit that he had never seen nor heard of behaviour similar to that alleged by Mr Ford, other than the incident with Mr Hill and Mr Ogg, buttocks patting, and some swearing and rude jokes between friends that were not threatening nor abusive.
817 Mr Phillips gave oral evidence that:
he had never seen employees engaging in simulated oral sex as described by Mr Ford (involving a plucker finger or the plucker finger gun);
he may have seen someone do an oral sex gesture (which he demonstrated to be the hand curled in a tube like shape, waving the elbow back and forth); and
he could not remember a specific instance of someone using the oral sex gesture in the workplace, but would not be surprised if it occurred in the workplace.
Other witnesses
818 Mr Chan, Mr Collett, Mr Hannett, Mr Lucht and Mr Flanders all gave oral evidence that they had never seen employees engaging in acts of simulated oral sex (transcript p 774, l 15-16; 813 ll 44-45; 906 ll 26-29; 1036 ll 27-28; 1607 ll 22-23).
819 Mr Rahiwi, Mr Mole, Mr Dhanoa, Mr Levaai, Mr Johnson, Mr Okoro, and Ms Horne all made statements in late November 2016 or early December 2016, during the workplace investigation, that they had never seen, heard of, nor been the perpetrator of pretending to perform oral sex with another employee at Inghams.
Consideration
820 The applicant relevantly submitted, in summary:
The conduct occurred mainly in the feather room and when Mr Ford was in an exposed position replacing plucker fingers.
When Mr Rafferty and Mr Waldock engaged in the conduct, their faces would be approximately 8 inches away from Mr Ford’s genital area, and they would hold either a rubber plucker finger or the gun used to put the plucker fingers on, and pretend to suck on the object.
The conduct continued through Mr Ford’s employment, including after Mr Ford returned from holidays in about September 2015, and into 2016.
The conduct was uninvited and upset Mr Ford.
The evidence that the conduct was unwelcome has not been challenged by the respondents.
Mr Rafferty's evidence should be treated as a guilty admission of the conduct.
821 The applicant relied on the circumstantial evidence, the evidence of a system or culture and the tendency evidence to establish this conduct.
822 The applicant also attacked Mr Waldock’s credit on the following basis:
Also counting against his credit is his denials of the conduct alleged against him by Mr Rafferty. The most he is prepared to accept out of those allegations by Mr Rafferty is that he made “sex gestures”. The gesture he was prepared to describe was exceedingly odd: P-606, l 1-2. He described a gesture having his hands and fingers in a tube like shape and waving his elbow backwards and forwards so that the hand came somewhere in line with the shoulder. This was not a sex gesture, let alone an oral sex gesture. This was a man attempting to distance himself as far as possible from any sexual harassment conduct: P-606, l 15
823 The respondents submitted, in summary:
Mr Ford cannot explain why he socialised with Mr Waldock after Mr Ford was allegedly subjected to, inter alia, the simulated oral sex conduct.
Mr Ford gave inconsistent evidence about when he claimed this conduct occurred. In particular, there is inconsistency between his AHRC complaint, and his statement of claim, in relation to the simulated oral sex conduct.
824 In my view the applicant has not substantiated this aspect of his case. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, and for the following reasons.
825 The “tendency evidence” on which the applicant relied in support of this aspect of his claim is unclear. No other witness, other than Mr Ly, gave evidence of Mr Waldock or Mr Rafferty engaging in conduct of this nature. I will turn to my views of Mr Ly’s evidence in this respect shortly. However, if the evidence on which the applicant relied is alleged general evidence of a workplace culture where workers engaged in widespread sexual acts, that allegation is not made out for the relevant time period (as I have already observed). Even if this allegation of a workplace culture at the relevant time were made out, it would not alone suffice to substantiate this aspect of Mr Ford’s claim.
826 In relation to this issue, the applicant’s criticism of the credibility of Mr Waldock concerning his demonstration in Court of conduct to which he admitted, cannot be sustained. The only possible interpretation of the described gesture, in the context in which Mr Waldock demonstrated it, was that it was, in the words of the applicant, a “sex gesture”. Rather than seeking to be untruthful, in my view Mr Waldock was, unsurprisingly, embarrassed demonstrating a simulation of this nature in the Court room environment.
827 In relation to the evidence of Mr Ly, I make the following observations:
His evidence is unparticularised and general.
Mr Ford gave evidence that other workers were sometimes present and would laugh at the conduct of Mr Rafferty and Mr Waldock. However, no witnesses who were workers in the relevant areas – other than Mr Ly – gave evidence that the alleged simulated oral sex conduct occurred. If the conduct had occurred in the feather room as alleged, it is implausible that no other witnesses would have been able to give relevant evidence supporting Mr Ford’s claim.
It is particularly noteworthy that neither Mr Bhardwaj nor Mr Ogg gave evidence of seeing such conduct. They both deposed that they would regularly finish their shifts in the afternoon in the feather room after they had finished hanging (see for example transcript p 168 ll 25-35; 438 ll 36-39). One would imagine that they would have seen such conduct – as Mr Ly alleged that Mr Waldock and Mr Rafferty engaged in the behaviour on many occasions (and at least once per week) – and be in a position to give evidence about it if it had occurred.
I am not persuaded that Mr Ford complained to Mr Ly about this alleged conduct. Certainly Mr Ford does not give evidence to that effect.
828 In my view the evidence of Mr Ly relating to this aspect of Mr Ford’s claim is not credible.
829 Ultimately, this issue must be resolved by reference to the conflicting evidence between Mr Ford and Mr Ly on the one hand, and Mr Rafferty and Mr Waldock (and to some extent, Mr Phillips) on the other, as no other witnesses gave evidence of having seen conduct of this nature.
830 I am not persuaded that the admission of conduct on the part of Mr Rafferty and Mr Waldock (and to some extent, Mr Phillips), concerning gestures they made to each other or other close friends, meant that they had engaged in the conduct claimed by Mr Ford at all, or had directed the conduct at him. Indeed, the conduct in respect of which Mr Rafferty and Mr Waldock gave evidence – relating to gestures among themselves – was markedly different to the conduct alleged by Mr Ford.
831 In light of these findings, and my earlier general credit findings, I prefer the evidence of Mr Rafferty and Mr Waldock to the evidence of Mr Ford and Mr Ly in respect of Agreed Issue 1(c).
832 Mr Ford’s claims referable to Agreed Issue 1(c) are not substantiated.
issue 1(d) The Second Respondent or the Third Respondent engaged in the conduct of performing acts of simulated anal sex on the Applicant in the period from around August 2015 to about September 2016 in the feather room as alleged in paragraph 22 of the RFASOC.
833 This issue is referable to paras 22 to 24 of the RFASOC, which provide:
Simulated anal sex by Rafferty and Waldock
22. From about August April or May 2015, Rafferty and Waldock performed acts of simulated anal sex on Mr Ford (the “anal sex conduct”)
Particulars
(a) The anal sex conduct occurred mainly in the feather room.
(b) Rafferty and Waldock engaged in the anal sex conduct individually.
(c) The anal sex conduct was engaged in when Mr Ford was bent over performing work tasks and one of Rafferty and Waldock came from behind, grabbed Mr Ford’s hips and pretended to perform anal sex.
(d) Mr Ford felt the groin area of the assailant against his buttocks.
(e) Rafferty and Waldock laughed when engaging in the anal sex conduct.
(f) Other employees were occasionally present when the anal sex conduct occurred and either laughed or appeared to ignore the anal sex conduct.
(g) The anal sex conduct occurred on a weekly basis.
23. Mr Ford:
(a) Did not solicit the conduct pleaded in paras 21 and 22 above;
(b) Communicated to Rafferty and Waldock that the conduct was unwelcome, particulars of which are at paragraph 16(b) above.
24. The conduct of Rafferty and Waldock pleaded in paras 21 and 22 above caused Mr Ford the symptoms and reactions in paragraph 20 above.
834 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 22 to 24 of the RFASOC, with the exception of para 23(a) which he neither admitted nor denied.
835 The second respondent also denied paras 22 to 24 of the RFASOC, insofar as those paragraphs related to the second respondent.
Evidence of the Applicant
Mr Ford
836 In summary, Mr Ford deposed at [161]-[169] of his redacted affidavit sworn 4 June 2018 that:
Mr Rafferty or Mr Waldock would perform the relevant acts when he was in a bent-over position.
The perpetrator would come up from behind, without warning, and would grab his hips. The perpetrator would then thrust his groin and genital region against his buttocks whilst holding onto him pretending to perform anal sex on him. He could feel the perpetrators groin region and genitals against his body.
The incident would usually take “five seconds or so and no longer than 15 seconds”.
This conduct first happened when he was doing relief work and cleaning in the hanging room. The duties involved picking up birds that had fallen onto the floor during production. This meant he had to bend over to pick them up. When he did so, his hands were full, and he was unable to push Mr Rafferty or Mr Waldock away.
When he was replacing plucker fingers, he was required to bend over to retrieve the plucker fingers (stored in a box on the ground or at waist height on a trolley) or knives (stored in a separate bucket on the ground).
This conduct mainly occurred in the feather room, approximately once per week.
He saw Mr Rafferty and Mr Waldock perform the conduct on each other on average twice per week.
This conduct happened around the same time as the dry humping conduct.
He did not invite this conduct and always objected to it in an angry and upset manner, which “should have indicated to them that I did not want them to do what they were doing to me”.
837 During cross-examination, Mr Ford relevantly gave the following evidence:
One of the types of conduct that you complain about, Mr Ford, is dry humping?---Yes.
And you also refer in your affidavit to simulated anal sex?---Yes.
Simulated genital sex?---Yes.
And simulated oral sex?---Yes.
I don’t mean to be disrespectful or make you feel uncomfortable, but I have to ask you what is the difference between dry humping and simulated genital sex?---Dry humping is when they’re touching you.
All right?---And – and up against you.
On what part of your body?---Your bottom.
Okay. And what’s simulated genital sex then?---When they don’t make contact.
What’s the difference between simulated genital sex and simulated anal sex?---I don’t remember.
(Transcript pp 272-273.)
Mr Ogg
838 Annexed to the First Ogg Affidait was a statement Mr Ogg provided to Inghams during the workplace investigation, which stated that he had never witnessed anyone sexually assaulting Mr Ford in work areas, or the men’s locker room, by pretending to have anal sex with him.
839 In the Fourth Ogg Affidavit, Mr Ogg relevantly deposed:
His earlier statement during the workplace investigation was untrue, and he could not recall making the statement.
He had witnessed Mr Rafferty and Mr Waldock pretending to have anal sex with Mr Ford on at least one occasion in the feather room.
Mr Bhardwaj
840 In the First Bhardwaj Affidavit, Mr Bhardwaj relevantly deposed (at [21]):
He saw Mr Rafferty pretend to have anal sex with workers regularly.
He recalled Mr Rafferty walking up to Mr Phillips, when Mr Phillips was bent over picking something up off the floor, and Mr Rafferty grabbing Mr Phillips’ hips and moving his hips backwards and forward towards Mr Phillips’ buttocks in a thrusting motion.
841 Mr Bhardwaj, in the Third Bhardwaj Affidavit, relevantly deposed (by reference to [21] of the First Bhardwaj Affidavit) that he witnessed Mr Rafferty engage in this conduct every day in the feather room when Mr Bhardwaj was helping with the cleaning and replacement of the plucker fingers at the end of his shift. Mr Bhardwaj stated that he could not recall the names of workers who were also present when he witnessed Mr Rafferty’s conduct.
842 The respondents objected to some of this evidence of Mr Bhardwaj on the bases, inter alia, of relevance, tendency and coincidence, and that it was unfairly prejudicial, misleading, evasive and ambiguous.
843 In my view, for reasons I have already given in respect of Mr Bhardwaj’s evidence, his evidence in this respect is admissible.
Mr Ly
844 Mr Ly, in the First Ly Affidavit, relevantly deposed as follows:
He had seen Mr Waldock, Mr Rafferty and Mr Mole pretend to have anal sex with another staff member.
He had seen Mr Rafferty and Mr Waldock pretend to have sex with Mr Ford when Mr Ford was bent over.
He recalled seeing inappropriate behaviour happen to Mr Ford at least once or twice per week.
845 The respondents objected to some of this evidence of Mr Ly on the bases, inter alia, of relevance, opinion, hearsay, and that it was unfairly prejudicial, misleading, evasive and ambiguous.
846 In my view, for reasons I have already given in respect of Mr Ly’s evidence, his evidence in this respect is admissible.
847 Mr Ly, in the Third Ly Affidavit, relevantly deposed by reference to the evidence he gave in the First Ly Affidavit:
Mr Rafferty and Mr Waldock engaged in the conduct on many occasions.
The conduct involved coming up closely behind a worker who was usually bent over, then making a movement using the hips and the groin to look like they were engaging in anal sex.
He saw this conduct happen at least once per week in the feather room and, on occasion, it was more than once per week.
He also saw Mr Rafferty and Mr Waldock engage in this conduct in the locker room, when workers were bent over reaching into their lockers or getting changed.
He saw Mr Rafferty and Mr Waldock engage in the conduct towards Mr Ford on a few occasions, but he could not recall the dates.
848 Mr Ly also gave oral evidence that:
“pretending to have anal sex with another staff member” happened in the hanging room, but it did not happen to Mr Ford in the hanging room; and
the conduct occurred towards Mr Ford in the feather room.
(Transcript pp 479-480.)
Evidence of the Respondents
Mr Rafferty
849 Mr Rafferty, in his affidavit sworn 7 July 2018, relevantly deposed as follows:
Early in his employment, he saw employees engage in, on a regular basis, simulated anal sex with each other (without physically touching each other) as part of the conduct associated with, or following on from, Gay Fridays.
Conduct associated with, or following on from, Gay Fridays was engaged in on a regular basis by a number of different employees working on the afternoon or night shift in the Red Area.
Over time, and to try and “fit in”, Mr Rafferty engaged in the conduct with other employees (without physically touching each other) in a joking and consensual manner.
He mainly engaged in this conduct in his first few years of employment at Inghams when he worked in the hanging room (before 2010 or 2011), and before Mr Ford commenced working at Inghams.
He mainly engaged in the conduct with his close friends, Mr Waldock and Mr Phillips.
He had not pretended to have simulated anal sex with anyone other than in respect of the employees who had engaged in the same conduct towards him.
He did not direct this sort of conduct towards Mr Ford because Mr Ford never did it to him, and he knew that Mr Ford would not like such conduct.
850 Mr Rafferty gave the following relevant evidence during cross-examination:
And simulated anal sex in the feather room?---Not anal sex.
Simulated. Someone bends over - - -?---From - - -
- - - and someone comes up behind them?---From five metres away.
From five metres away?---Yes.
And what were they doing five metres away?---They would just, like – do like this, when someone was bent over.
You did that, didn’t you?---Only to Brenden and Wade.
Only to what, sorry?---Brenden and Wade.
So could you just give me a demonstration of what you did? Just stand up andshow?---Yes. They would be over there, picking stuff up, and I would be, like, “Oi”. That was it. Like, yell out of them and go, “Oi”, wink at them and go like this, just as a joke.
So you’re – what – you can sit back in the witness box. So what you just demonstrated standing up was moving your hips in and out and knees up and down. Is that right?---Yes.
And your arms, with your fists clenched, going back and forward. That’s what you’ve demonstrated?---Yes, yes.
And what would you call out to them?---Just – I don’t know. Just yell out to them so they would look at you, and then you would do it and then they would laugh.
While they were bent over?---Yes, from a distance.
See, that’s silly, isn’t it, Mr Rafferty?---I never did it to anyone that hadn’t done it to me.
Mr Rafferty, that wasn’t the question I asked. That is silly. Five metres away, there is no effect of anal sex in that, is there?---No.
And that’s why you’re distancing yourself from it, aren’t you?---No.
(Transcript pp 519-520.)
Mr Waldock
851 Mr Waldock, in his affidavit affirmed 5 July 2018, relevantly deposed as follows:
He denied engaging in the simulated anal sex conduct described by Mr Ford.
He never engaged in conduct that could be said to simulate anal sex with a co-worker.
852 During cross-examination, Mr Waldock also gave oral evidence that:
he thought pretending to have anal sex was the same conduct as dry humping (transcript p 604 ll 1-6);
Mr Ogg would not have seen him pretending to have anal sex with Mr Ford (transcript p 621 l 6); and
Mr Ly would not have seen him pretending to have anal sex with co-workers (transcript pp 618 l 43).
Mr Phillips
853 Mr Phillips, in his affidavit affirmed 6 July 2018, relevantly deposed that:
he had never been approached and grabbed by the hips by Mr Rafferty, or by anyone at Inghams, whilst he was bending over; and
he had never observed this type of behaviour at Inghams.
Other witneses
Mr Rahiwi, Mr Mole, Mr Dhanoa, Mr Levaai, Mr Johnson, Mr Okoro, and Ms Horne all made statements in late November 2016 or early December 2016, during the workplace investigation, that they had never seen, heard of, nor been the perpetrator of pretending to perform anal sex with another employee.
Consideration
854 Relevantly, the applicant submitted, in summary:
Evidence of Mr Rafferty was consistent with a guilty mind as he constructed fanciful and absurd scenarios for his version of simulated anal sex.
Mr Rafferty “gave a sanitised description of simulated anal sex, performed as an odd disco dance body movement 5 metres away from the target. It is another implausible effort to distance himself from body contact and from Richard.”
Mr Rafferty’s evidence that the conduct did not occur in the feather room was implausible.
Mr Rafferty was evasive and struggled to answer when asked to explain why grabbing someone on the hips for simulated anal sex would not be a good laugh.
Simulated anal sex acts were a variation of dry humping.
The conduct was a continuing behaviour over a period of time.
Simulated anal sex was one of the standard features of the culture that became entrenched and rampant in the Red Area, particularly the feather room, during the clean-up period after production had finished.
The circumstantial evidence, the evidence of a system or culture and the tendency evidence established this conduct.
855 The respondents submitted, relevantly:
The applicant was friends with Mr Rafferty, Mr Waldock and Mr Phillips. He socialised with them and relied on them to assist him with personal matters.
Mr Ford could not explain why he socialised with them after he was allegedly subjected to, inter alia, simulated anal sex by them.
856 During cross-examination the following exchange occurred between Ms Reece for the respondents and Mr Ford:
MS REECE: Mr Ford, I will just take you to paragraph – so just so I understand, you’ve said dry humping is when actual contact is made?---Dry humping - - -
HER HONOUR: No. Sorry. Yes.
THE WITNESS: So much as I can remember .....
MS REECE: Okay. And so you’re saying the difference is that simulated anal sex – or – sorry – simulated genital sex is when there’s no actual touching?---I can’t remember.
Well, that’s what you just said, Mr Ford.
HER HONOUR: I think Mr Ford said no contact.
MS REECE: Okay. No contact.
THE WITNESS: Yes.
MS REECE: And do you agree – is it your understanding that simulated anal sex in the way that you’ve referred to it in your affidavit – is that a contact or a non-contact kind of behaviour?---Non-contact.
Okay. At paragraph 161 of your first affidavit - - -?---Yes.
- - - you say:
Rafferty and Waldock would perform the act when I was in the bent over position. The perpetrator came up from behind me without warning and would grab my hips. The perpetrator would thrust his groin and genital region against my bottom while holding on to me, pretending to perform anal sex on me. I could feel the groin region and genitals of the perpetrator against my body.
?---Yes.
So that is contact that you’re describing there, isn’t it?---Yes.
Do you agree, Mr Ford, that what you’re describing there is the same as what you described for dry humping?---I’m unsure.
Aren’t dry humping and simulated anal sex really the same thing in the way that you’ve described them?---Can you repeat the question, please?
Certainly. Aren’t anal – simulated anal sex acts and dry humping really the same thing given the way you’ve described them?--- I’m unsure.
Well, I will just – I don’t want to labour the point, Mr Ford. You’ve said with dry humping it would mean someone coming up against your bottom, that you could feel their body, pretending to have sex with you?---Yes.
With anal sex – simulated anal sex, you’ve described the same process, haven’t you, in your evidence?---Sometimes they wouldn’t be touching.
(Transcript pp 273-274.)
857 In my view, and notwithstanding the separate allegations pleaded in the RFASOC, I agree with the submission of Ms Reece made during the hearing that there is no real distinction between the alleged dry humping of Mr Ford by one or more of the respondents, and the alleged anal sex conduct perpetrated towards Mr Ford by one or more of the respondents. Essentially, these claims of the applicant describe the same alleged conduct. The distinctions of “touching” or “not touching” drawn by the applicant are, fundamentally, illusory to the extent that the applicant himself appeared (for good reason) to have difficulty differentiating the two types of conduct. Further, the manner in which the case was both pleaded and conducted meant that there was almost complete overlap between the two types of alleged conduct.
858 There is nothing of substance I can add to the reasons I have already given in respect of Agreed Issue 1(b), other than to note that the conduct of Mr Rafferty towards Mr Phillips which was alleged by Mr Bhardwaj to have taken place was strongly denied by Mr Phillips (though it is not clear on the description given by Mr Bhardwaj whether this was dry humping conduct or simulated anal sex conduct).
859 For those same reasons I have given in respect of Agreed Issue 1(b), and taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, I find that the applicant’s claims in relation to Agreed Issue 1(d) are not substantiated.
Agreed ISSUE 1(e): The Second Respondent or the Third Respondent engaged in the conduct of pulling down the Applicant's pants on two occasions in the period from around August 2015 to about September 2016, in the feather room, as alleged in paragraph 25 of the RFASOC.
860 This issue is referable to paras 25 to 27 of the RFASOC, which provide:
Rafferty and Waldock pulling down Mr Ford’s pants
25. From August After April 2015 during the material time, Rafferty and Waldock pulled Mr Ford’s pants down on two occasions, fully exposing Mr Ford’s underwear (the “conduct”)[.]
Particulars
(a) The conduct occurred in the feather room.
(b) Rafferty and Waldock were the only persons present with Mr Ford.
(c) On each occasion, Mr Ford was approached from behind and his pants were pulled down by surprise, fully exposing Mr Ford’s underwear.
(d) Rafferty and Waldock laughed when they engaged in the conduct.
26. Mr Ford:
(a) Did not solicit the conduct pleaded in paragraph 25 above;
(b) Communicated to Rafferty and Waldock that the conduct was unwelcome by telling Rafferty and Waldock to “piss off” and by shaking his head.
27. The conduct of Rafferty and Waldock pleaded in paragraph 25 above caused Mr Ford feelings of shock, offence, depression, belittlement, intimidation and humiliation.
861 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 25 to 27 of the RFASOC, with the exception of para 26(a), which the third respondent neither admitted nor denied.
862 In the amended defence of the second respondent, the second respondent denied paras 25 to 27 of the RFASOC.
Evidence of the applicant
Mr Ford
863 Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [188]–[193]:
On two occasions in the feather room, at a date towards the end of his employment (though he is not precisely sure when), Mr Waldock pulled Mr Ford’s pants down, fully exposing his underwear.
On each occasion, Mr Waldock had approached him from behind, surprising Mr Ford.
When Mr Ford turned around, both Mr Waldock and Mr Rafferty were standing immediately behind him, laughing at him.
Mr Ford was wearing long thin cotton pants, which Inghams supplied, and which workers generally wore underwear underneath, but Mr Ford also wore shorts underneath the pants, as he did not feel comfortable only wearing underwear underneath.
On the first occasion, Mr Waldock had pulled Mr Ford’s pants to the ground, and his shorts underneath were pulled to his thighs, nearly completely exposing his underwear.
On the second occasion, his pants and shorts were not pulled all the way down (as he managed to spread his legs) and only part of his underwear was exposed. When Mr Ford turned around, Mr Waldock moved away from him (such that it was apparent he had been the one to pull his pants down) and stepped to the side. Mr Rafferty was about three metres away.
On each occasion, there was no one else in the immediate area and Mr Rafferty and Mr Waldock were the only other people he had seen in the feather room.
On each occasion it happened, he told them to “piss off” and shook his head angrily at them.
864 During cross-examination, Mr Ford gave evidence that the uniform was cotton style and the pants were drawstring pants that were elasticated (transcript p 82 ll 15-20). When it was suggested during cross-examination that at no time did either Mr Rafferty or Mr Waldock pull down his pants, Mr Ford responded with “Brenden did” (transcript p 387 ll 8-9).
865 Mr Ford’s evidence appeared to be that, on two occasions in the feather room, Mr Waldock pulled his pants down and Mr Rafferty was present and nearby, but Mr Rafferty was not the actual perpetrator of the conduct.
Mr Bhardwaj
866 Mr Bhardwaj did not give evidence in his affidavits of observing any workers’ pants being pulled down by other employees. However, during cross-examination, Mr Bhardwaj:
claimed that he had seen, on one occasion, Mr Rafferty, Mr Waldock and Mr Phillips pull Mr Ford’s pants down while he was working (transcript p 194 ll 22-36); and
later claimed that “[t]hey always do, especially in the locker room” (transcript p 195 ll 34-35).
Mr Ly
867 In the First Ly Affidavit, Mr Ly deposed that:
he had seen Mr Rafferty, Mr Waldock and Mr Mole pull other employees’ pants down;
he had seen Mr Rafferty and Mr Waldock pull Mr Ford’s pants down while Mr Ly was working in the feather room;
he recalled seeing such conduct (along with other conduct) happening towards Mr Ford at least once or twice per week;
Mr Ford looked angry and upset about the conduct; and
he had overheard Mr Ford ask Mr Rafferty and Mr Waldock to stop touching him, but they did not stop.
868 The respondents objected to the evidence that Mr Ly had seen Mr Ford’s pants being pulled down, on the basis that it was hearsay, opinion, and unfairly prejudicial and misleading because the evidence did not differentiate between individuals and the alleged conduct, nor was it clear as to date and time. Similarly to my earlier findings in respect of other evidence of Mr Ly, this evidence on the part of Mr Ly is his direct evidence, and not unfairly prejudicial nor misleading.
869 In the Third Ly Affidavit, Mr Ly deposed that:
Mr Rafferty and Mr Waldock engaged in the conduct of pulling other employees’ pants down on approximately five occasions in total between the two of them, though he could not recall the dates of the incidents;
he and another co-worker, Noora, had also been subjected to the conduct;
he saw this conduct happen in the feather room at the end of his shift; and
he had seen Mr Rafferty, Mr Waldock and Mr Mole pull Mr Ford’s pants down on a few occasions.
Mr Ogg
870 In the Fourth Ogg Affidavit, Mr Ogg deposed as follows:
15. …I also now recall he mentioned that Michael and Brendan [sic] had pulled his pants down. Having been asked a series of questions and having my recall pressed about the behaviour I have witnessed at Inghams, I remember seeing each of Michael and Brendan [sic] pull Richard’s pants down on more than one occasion. I cannot give a date for when this occurred.
Evidence of the respondents
Mr Rafferty
871 Mr Rafferty, in his affidavit sworn 7 July 2018, deposed that he had seen employees pull co-workers’ pants down on a regular basis early in his employment as part of the conduct associated with, or following on from, Gay Fridays. He claimed he had never engaged in that behaviour, including towards Mr Ford.
872 During cross-examination, Mr Rafferty gave evidence that he had seen people pulling down other’s pants, but only in the hanging room (not the feather room) and years before the relevant period of time (transcript p 519 ll 22-27). He later accepted that the conduct may have happened in the feather room, but he could not remember as it was a long time ago (transcript p 521-522). In this regard, I note the following exchange during cross-examination:
HER HONOUR: Can I just ask why did you say no to the feather room? You seem quite certain about that. Why would that be?---Because I don’t remember it happening in the feather room. Yes.
Okay. Thanks?---Yes. If I – if it – if it happened in the hanging room – if it happened in the feather room, I would be more than happy to say that it happened there, because I seen it happen in the hanging room, so why would I not say that it happened in the feather room. I - - -
MR REIDY: Well, the reason you would say it wouldn’t happen in the feather room is because you know all of Richard’s allegations pretty well are about things that occurred in the feather room?---Mmm.
So that’s why you’re not saying it, isn’t it? You know that. You know the allegations are about the feather room?
MS REECE: Well, your Honour, they’re also about the locker room. It’s not true to say that they’re all about the feather room, and in fact, in Richard’s evidence, there was an allegation that something happened in the hanging room.
HER HONOUR: Sorry.
MR REIDY: Well, I will put it this way?---Thank you.
You know, Mr Rafferty, that most of Richard’s allegations are about events that occurred in the feather room. You know that, don’t you? Yes. You’re nodding, but that’s yes. Can you say yes?
HER HONOUR: Sorry, Mr Rafferty?---No.
You will need to – you will need to speak?---Yes. Sorry. Yes.
MR REIDY: And so I was asking you about pulling down pants?---Yes.
And is your answer you can’t recall it happening in the feather room?---I don’t recall it happening. I’m not saying it didn’t. I’m just saying, to the best of my knowledge, I didn’t see it happen in the feather room.
(Transcript pp 522-523.)
Mr Waldock
873 Mr Waldock, in his affidavit affirmed 5 July 2018, denied that he had ever pulled Mr Ford’s pants down, and stated:
I do not believe that this would be possible to do to a process worker, as their uniform had a drawstring at the front which, tied up, would be too tight to move like this.
874 Mr Waldock reiterated this opinion during cross-examination, stating:
Well, the pants themselves have a drawstring that could be tied up. So if your pants were tied up you shouldn’t be able to pull them down, from what I think.
They’re elasticised, aren’t they?---They have a drawstring.
Yes?---Yes.
So that you know, I would think – without any expert evidence – that elastic stretches?---Yes, but with a cord that’s tied up.
(Transcript p 607 ll 23-32.)
875 I note that Mr Ford (in his second affidavit sworn 6 August 2018) disagreed that the drawstring on his pants would be so tight as to prevent his pants being pulled down as the pants could be “easily removed with a quick, firm tug”.
Mr Flanders
876 Mr Flanders gave oral evidence that he had never seen employees pulling co-workers’ pants down (transcript p 1067 l 25).
Other witnesses
877 No other witness for the respondent was asked about this conduct during cross-examination.
878 Mr Rahiwi, Mr Mole, Mr Dhanoa, Mr Lucht, Mr Levaai, Mr Hannett, Mr Johnson, Mr Okoro, Ms Horne and Mr Chan all made statements in late November 2016 or early December 2016, during the workplace investigation, to the effect that they had never seen, heard of, nor been the perpetrator of pulling down another employee’s pants at Inghams.
Consideration
879 The applicant relevantly submitted, in summary:
Mr Ford recalled two occasions where his pants were pulled down by surprise in the feather room. On the first occasion, it could have been either Mr Rafferty or Mr Waldock, and on the second occasion Mr Ford was sure it was Mr Waldock as Mr Rafferty was about 3 metres away.
Mr Waldock and Mr Rafferty would laugh at Mr Ford as Mr Ford stood there with his underwear exposed.
Mr Ford felt shocked and belittled as a result of the conduct.
Mr Ogg had witnessed Mr Rafferty and Mr Waldock pull Mr Ford’s pants down on more than one occasion.
The circumstantial evidence, the evidence of a system or culture and the tendency evidence established this conduct.
880 The respondents relevantly submitted:
Mr Ford’s evidence was inconsistent, and demonstrated a willingness to construct versions of the truth to bolster his case.
An example of this inconsistency was that Mr Ford apparently informed his wife that he had commenced wearing shorts underneath his work pants so that, if anyone tried to pull his pants down, he would still have shorts on. However, his own evidence was that he always wore shorts underneath his work pants because he felt more comfortable doing so.
It was not until the Fourth Ogg Affidavit that Mr Ogg stated that he had seen Mr Waldock and Mr Rafferty pull down Mr Ford’s pants on more than one occasion. This was inconsistent with the First Ogg Affidavit, where he did not give any evidence of observing conduct alleged to have involved Mr Ford. It was also inconsistent with the statement Mr Ogg made in the course of the workplace investigation, in which he stated that he had never seen anyone sexually assault Mr Ford, including by pulling his pants down.
881 I do not accept the respondents’ submission that Mr Ford’s evidence as to the reasons why he wore shorts under the work pants was inconsistent. Mr Ford’s evidence was that he commenced wearing shorts under his work pants because he “did not feel comfortable wearing only underwear”: at [189] of his 4 June 2018 affidavit. Ms Hanner’s evidence was that Mr Ford told her he started wearing pants so that he would have pants under the work pants when people pulled his work pants down: at [22] of Ms Hanner’s affidavit sworn 4 June 2018. There is some inconsistency between this evidence, however this inconsistency cannot necessarily be directed at Mr Ford. Mr Ford did not give evidence as to what caused his discomfort in wearing only underwear under his work pants. Ultimately, the reason for Mr Ford wearing shorts under his work pants is unclear, however I prefer to accept his explanation that he did not feel comfortable wearing only underwear, over Ms Hanner’s hearsay.
882 Turning now to the applicant’s case concerning Agreed Issue 1(e), in my view it is not substantiated. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, and for the following reasons.
883 First, Mr Ford’s evidence only identified relevant conduct as having been allegedly perpetrated by Mr Waldock. It is unclear to me why, in his pleaded case at para 25 of the RFASOC, Mr Ford also claimed that Mr Rafferty pulled Mr Ford’s pants down. Whilst the applicant contended that Mr Ford was unsure of who (out of Mr Rafferty and Mr Waldock) had pulled his pants down on the first occasion, this is inconsistent with Mr Ford’s evidence that:
“[o]n two occasions in the feather room, Waldock pulled down my pants”; and
“[o]n each occasion, Waldock approached me from behind”.
884 There is no credible evidence from Mr Ford supporting this aspect of his claim to the extent that he seeks relief against Mr Rafferty.
885 Second, Mr Bhardwaj’s evidence conflicted with Mr Ford’s evidence in relation to the alleged perpetrator(s) of the conduct, the number of times Mr Ford was subjected to the conduct, and whether someone observed the conduct. Mr Bhardwaj’s evidence was also internally inconsistent. Mr Bhardwaj first claimed during cross-examination that Mr Rafferty, Mr Waldock and Mr Phillips pulled Mr Ford’s pants down once, and then later claimed it happened frequently. Mr Bhardwaj also nominated Mr Phillips as a perpetrator of this conduct, which neither Mr Ford nor anyone else alleged.
886 There is no reason why Mr Bhardwaj’s oral evidence in relation to this conduct could not have been included in any of Mr Bhardwaj’s three affidavits. In light of the noted inconsistencies in Mr Bhardwaj’s evidence, the lateness with which he claimed to have witnessed the conduct, and my prior general findings concerning his credit, I consider that Mr Bhardwaj’s evidence in respect of this conduct is not reliable.
887 Third, Mr Ly’s evidence is inconsistent with Mr Ford’s own evidence in two respects. Mr Ly claimed that Mr Mole also engaged in the conduct – an allegation no-one else made (including Mr Ford). Further, Mr Ly claimed during cross-examination that there were many other people around when he saw Mr Ford’s pants being pulled down (transcript p 480 ll 21-35), whereas Mr Ford gave evidence that there was no-one else around when the relevant conduct occurred. To the extent that there is a conflict bertween Mr Ford’s evidence and Mr Ly’s evidence in this respect, I prefer the evidence of Mr Ford. I do not accept Mr Ly’s evidence as reliable in respect of this aspect of the claim.
888 Fourth, I have already found that I consider Mr Ogg to be a witness of negligible credit, and consider it likely that the evidence in the Fourth Ogg Affidavit relating to this aspect of the claim was contaminated by his discussions with Mr Ford. I give no weight to this evidence.
889 Fifth, I consider Mr Rafferty’s evidence in respect of an earlier time at Inghams when this type of conduct occurred to be credible. I also consider it likely that Mr Ford had heard co-workers discussing this type of conduct – indeed Mr Rafferty gave evidence that he had told Mr Ford about historically inappropriate conduct (affidavit of Mr Rafferty sworn 7 July 2018, at [6]).
890 Sixth, I note evidence before the Court that the work pants at Inghams were fastened with a drawstring, such that it would be difficult to pull them down without first loosening them. This was the evidence of Mr Waldock. I consider this evidence to be credible, and it in turn reduces the plausibility of Mr Ford’s allegation.
891 On balance, noting the denials of Mr Rafferty and Mr Waldock that they had engaged in this conduct, I find that Mr Ford’s claims in respect of Agreed Issue 1(e) are not substantiated.
Agreed Issue 1(f): The Second Respondent in about November 2015 engaged in the conduct of using his finger to poke the Applicant in the anus in the feather room as alleged in paragraph 28 of the RFASOC.
agreed Issue 1(i): The Third Respondent in about August 2016 engaged in the conduct of putting his finger into the Applicant's anus in the feather room as alleged in paragraph 40 of the RFASOC.
agreed ISSUE 1(J): The Fourth Respondent in about February 2016 engaged in the conduct of using his finger to poke the Applicant in the anus at a picnic table near the security gate entrance to the First Respondent’s Murarrie facility as alleged in paragraph 70 of the RFASOC.
Agreed Issue 1(l): The Third Respondent in about March 2016 engaged in the conduct of poking his finger into or in the region of Kelvin Lucht’s anus in view of the Applicant in the feather room as alleged in paragraph 43 of the RFASOC.
892 These issues are referable to the following conduct:
Mr Ford allegedly being poked in the anus, in the feather room, with a finger by Mr Rafferty (Agreed Issue 1(f)), and with a finger by Mr Waldock (Agreed Issue 1(i));
Mr Ford allegedly being poked in the anus with a finger by Mr Phillips, near a picnic table adjacent to the security gate entrance (Agreed Issue 1(j)); and
Mr Ford allegedly witnessing Mr Waldock poking his finger into Mr Lucht’s anus in the feather room (Agreed Issue 1(l)).
893 Due to the similarity in the nature of the conduct alleged, and the applicant’s reliance on tendency evidence and the presence of a culture or system, I consider it appropriate to discuss the evidence in relation to all of these issues together.
894 Agreed Issue 1(f) is referable to paras 28 to 30 of the RFASOC, which provide:
Rafferty’s digital anal assault of Mr Ford
28. In about November early August 2015, Rafferty approached Mr Ford from behind when Mr Ford was standing in the feather room production area and forcefully inserted his finger into Mr Ford’s anus (the “conduct”).
29. Mr Ford:
(a) Did not solicit the conduct pleaded in paragraph 28 above;
(b) Communicated to Rafferty that the conduct was unwelcome by telling Rafferty to “fuck off” and to stop.
30. The conduct of Rafferty pleaded in paragraph 28 above caused Mr Ford:
(a) immediate physical discomfort;
(b) immediate shock, offence, humiliation, intimidation and revulsion;
(c) the symptoms and reactions in paragraph 20 above.
895 In his amended defence, the second respondent denied paras 28 to 30 of the RFASOC, and stated further in relation to para 29 of the RFASOC:
a) in or around September 2015 the Second Respondent slapped the Applicant on the (clothed) buttocks whilst they were both in the feather room;
b) in response, the Applicant said to him words to the effect that he did not want the Second Respondent to slap his buttocks again;
c) the Second Respondent immediately apologised to the Applicant;
d) the Applicant responded by staying to the Second Respondent words to the effect of “that’s ok, just don’t do it again”;
e) the Second Respondent respected the Applicant’s request and did not slap the Applicant’s buttocks again;
f) the Applicant remained friendly toward the Second Respondent after this incident; and
g) the Applicant did not, at any time, request that the Second Respondent cease any other behaviour or alleged behaviour.
896 Agreed Issue 1(i) is referable to paras 40 to 42 of the RFASOC, which provide:
Waldock’s digital anal assault on Mr Ford
40. In August 2016, in the feather room, Waldock put his finger into Mr Ford’s anus, moved his finger around when it was in that position and then, after withdrawing his finger, put it close to Mr Ford’s face and told Mr Ford that he could feel Mr Ford’s “bumhole” or anus “pucker and unpucker” (the “conduct”).
Particulars
(a) Waldock took Mr Ford by surprise.
(b) Mr Ford did not see him coming.
(c) Waldock rammed his finger into Mr Ford’s anus.
(d) The force of Waldock’s assault caused Mr Ford’s underwear to go into his anus, requiring Mr Ford to pull the underwear out.
(e) Waldock moved his finger around in Mr Ford’s anus.
(f) After removing his finger, Waldock and Mr Ford were face to face.
(g) Waldock put his finger close to Mr Ford’s face.
(h) With his finger in Mr Ford’s face, Waldock said words to the effect that he could feel Mr Ford’s bumhole pucker and unpucker
41. Mr Ford:
(a) Did not solicit the conduct pleaded in paragraph 40 above;
(b) Did not have time to make any response to the conduct pleaded at paragraph 40 above because of the suddenness of the conduct and then feeling shocked, disgusted and disturbed by the conduct.
42. The conduct of Waldock pleaded at paragraph 40 caused Mr Ford to feel:
(a) immediate physical discomfort, humiliation, belittlement, offence, anxiety, distress, worry, feelings of depression, feelings of intimidation;
(b) the symptoms and reactions in paragraph 20 above.
897 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 40 to 42 of the RFASOC.
898 Agreed Issue 1(j) is referable to paras 70 to 72 of the RFASOC, which provide:
Phillips’ digital anal assault on Mr Ford
70. In about February 2016 October 2015, at a picnic table near the security gate entrance at the premises, Phillips poked his finger into Mr Ford’s anus (the “conduct”).
Particulars
(a) Mr Ford had come from the car park on the way to commence his shift.
(b) He was at the picnic table organising his gear, namely, his work bag, motorbike helmet and jacket, before entering the gate.
(c) As Mr Ford bent over the table, Phillips poked his finger up Mr Ford’s anus
71. Mr Ford did not solicit the conduct pleaded in paragraph 70.
72. The conduct pleaded in paragraph 70 above caused Mr Ford:
(a) immediate physical discomfort;
(b) immediate and continuing shock and horror;
(c) offence, humiliation and intimidation;
(d) to feel physically ill at the time and when recalling the conduct;
(e) to be unable to concentrate on his work and to be unable to work efficiently;
(f) to feel nauseated;
(g) the symptoms and reactions in paragraph 20 above.
899 In the amended defence of the first and third to fifth respondents, the fourth respondent denied paras 70 to 72 of the RFASOC.
900 Agreed Issue 1(l) is referable to paras 43 to 45 of the RFASOC, which provide:
Waldock’s digital anal assault on Kelvin
43. In about March 2016, in the feather room, in the sight of Mr Ford, Waldock poked his finger into or in the region of Kelvin’s anus (the “conduct”)
Particulars
(a) Kelvin was in the feather room walking along checking the work that was being done by the workers on the plucker fingers.
(b) Waldock sneaked up behind him and poked him up the anus or in the region of the anus using Waldock’s finger.
(c) Kelvin tried to knock Waldock’s hand away and moved away quickly.
(d) Kelvin told Waldock to “fuck off”.
(e) Waldock laughed when he engaged in the conduct.
44. Mr Ford:
(a) Did not solicit the conduct pleaded in paragraph 43 above;
(b) Communicated to Waldock that the conduct was unwelcome by shaking his head at Waldock.
45. The conduct of pleaded at paragraph 43 above caused Mr Ford to feel:
(a) shocked that this could be happening to a leading hand;
(b) powerless because it was happening to a leading hand;
(c) embarrassed, humiliated, offended and intimidated;
(d) depressive symptoms and anxiety.
901 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 43 to 45 of the RFASOC.
Evidence of the applicant
Mr Ford
902 In relation to Agreed Issue 1(f), Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [194]-[206]:
In about November 2015, a few months after he was permanently rostered in the feather room with Mr Waldock and Mr Rafferty, he was in the feather room picking up feathers on line two when he felt something uncomfortable in the region of his anus.
When he turned around he saw that Mr Rafferty was behind him.
He realised Mr Rafferty had stuck his finger into his anus from the outside of the thin cotton pants over his shorts.
Mr Rafferty did not push his finger in very far. The action was a long jab, lasting approximately two seconds. It felt unpleasant and uncomfortable, but he did not feel any great physical pain.
He told Mr Rafferty to “fuck off” and visibly reacted in an angry manner, indicating he was upset and wanted Mr Rafferty to stop.
Mr Rafferty laughed and responded with words to the effect: “Doesn’t Brenden do this to you?”
As far as he is aware, no one witnessed Mr Rafferty do this.
He did not tell anyone about the incident because he felt ashamed.
903 In relation to Agreed Issue 1(i), Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [320]-[329]:
In August 2016, not long before he stopped working at Inghams, at about 8.00 pm to 8.30 pm, he was facing the plucker fingers, getting ready to remove the broken fingers.
Mr Waldock came up behind him without him realising it.
He felt pain and discomfort in his anal area as though a firm object, like a finger, had been forcefully rammed into his anus. He felt his underwear push into his anus, which he had to pull out afterwards.
He felt the finger moved around in his anus for about three to five seconds before it was withdrawn.
He did not feel lasting physical pain.
This conduct was rougher than earlier incidents that had occurred to Mr Ford at Inghams.
He turned around and Mr Waldock was behind him, with one of his fingers up close to Mr Ford’s face. Mr Waldock said: “I could feel your bum hole pucker and unpucker.” Mr Waldock’s expression was blank and unlike with earlier incidents, he was not laughing or smiling.
He believed other co-workers were around, but does not know if any saw the incident.
He believed the event occurred in August 2016 because it was the last incident that occurred before his last day at Inghams.
904 In relation to Agreed Issue 1(j), Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [224]-[235]:
In about February 2016, he arrived at worked, parked his motorbike in the staff car park and walked to the picnic table near the entry gate to organise his work gear.
He was bent over the table organising his gear when he felt something poke into the region of his anus from the outside of the shorts he was wearing.
He turned around and saw Mr Phillips standing behind him. Mr Phillips was not holding anything so Mr Ford believed he used his finger to poke him.
The poke felt like a quick short jab, lasting a couple of seconds. He felt the finger go into his anus. It did not cause him any lasting pain.
Mr Phillips continued to walk past him. He turned around and smirked at Mr Ford and then continued towards the entry gate.
He believed the incident occurred in February 2016, as the incident occurred before he went to New Zealand on 19 February 2016, but after he went to the Belmont Tavern with Mr Waldock and Mr Phillips in December 2015 or January 2016.
905 In relation to Agreed Issue 1(l), Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [236]-[241]:
In about March 2016, he was working in the feather room and Mr Lucht was walking around, checking the work being done by the employees on the plucker fingers.
Mr Waldock “snuck up” behind Mr Lucht and poked his finger in the region of Mr Lucht’s anus.
Mr Lucht immediately moved to swipe Mr Waldock’s hand away and did “like a quick skip and walk away”. Mr Lucht told Mr Waldock to “fuck off”.
Mr Waldock laughed throughout the incident.
Other co-workers were present during the incident.
He believed the incident occurred in March 2016 because it occurred after Mr Rafferty poked him in the anus with a squeegee mop handle and after he returned from New Zealand in late February 2016, but before Mr Waldock and Mr Rafferty dry humped Mr Hannett.
906 In his redacted affidavit sworn 6 August 2018, Mr Ford also deposed to an incident he recalled where he was working on line 2 with Mr Rafferty and another worker, Dougal. Mr Ford deposed that he and Mr Rafferty were approximately one metre apart, facing the platform stand where Dougal was pulling out feathers, when Mr Rafferty poked Dougal in the anus. Mr Ford claimed that Dougal turned around and looked angry and annoyed.
907 During cross-examination of Mr Ford, Counsel for the respondents put to Mr Ford that, in his police statement (made five months after Mr Ford left Inghams and several months after Mr Ford’s AHRC complaint), Mr Ford claimed that he had been poked in the anus by Mr Rafferty, Mr Waldock and Mr Phillips whilst he was standing over the water fountain at the end of the hallway, close to line 2 in the hanging room (transcript p 206 ll 11-40). Counsel further put to Mr Ford that this allegation was not pleaded nor present in his affidavit material. Mr Ford gave no evidence concerning this allegation, and said he was unsure whether he had mentioned the water fountain incident in his affidavits (transcript p 206 ll 40-47).
Mr Bhardwaj
908 In the First Bhardwaj Affidavit, Mr Bhardwaj deposed that he had seen Mr Mole, Mr Rafferty, Mr Waldock and Mr Phillips poke their fingers in the buttocks of other workers in the feather room. He also deposed that they had done so to him.
909 The respondents objected to the admission of this evidence on the basis that it was irrelevant, was tendency and coincidence evidence, was unfairly prejudicial and misleading, and was evasive and ambiguous. However, the evidence is clearly of relevance to the present issue, being evidence of the occurrence of similar conduct. I have already noted that I consider such evidence admissible under Pt 3.6 of the Evidence Act. It is also unclear to me, in the absence of particularisation of their objections, exactly how this evidence is unfairly prejudicial, misleading or evasive. Further, whilst the evidence is ambiguous in that it is not referable to any period of time, and the workers subjected to the conduct were not named, I consider this to be an issue going to weight rather than admissibility.
910 In the Third Bhardwaj Affidavit, Mr Bhardwaj expanded on his earlier evidence, stating that he had seen Mr Mole, Mr Rafferty, Mr Waldock and Mr Phillips engage in the conduct every day in the feather room when he was in that room at the end of his shift (helping to clean and replace the plucker fingers). In particular, he deposed that Mr Phillips had poked him in the anus twice, and that Mr Waldock had poked him in the anus once.
911 During cross-examination, Mr Bhardwaj also asserted that he had made a written complaint to Mr Hannett in relation to anal intrusions by Mr Waldock’s finger and Mr Rafferty’s finger (transcript p 181-182).
Mr Ogg
912 In the First Ogg Affidavit, Mr Ogg deposed that he had seen employees engaging in poking their fingers into the anuses of other employees. The respondents objected to the admission of this evidence on the basis of relevance, that it was unfairly prejudicial and misleading, as well as evasive and ambiguous. However, I take the view that the evidence is relevant, being evidence of similar alleged conduct occurring at Inghams. Whilst very general in nature, not being referable to specific employees or time periods, its ambiguity is an issue that will affect the weight to be attributed to the evidence, rather than its admissibility. There is negligible risk that the Court would be misled by the evidence, even if it is ambiguous.
913 Mr Ogg did not depose in the First Ogg Affidavit to having witnessed (or been told of) such conduct occurring to Mr Ford.
914 In the Third Ogg Affidavit, Mr Ogg deposed that he had seen Mr Rafferty and Mr Waldock engage in poking a finger into the anuses of other co-workers approximately twice per week, and that they had engaged in the conduct towards him approximately twice per month.
915 In the Fourth Ogg Affidavit, Mr Ogg deposed:
On one occasion, about three to four years ago, Mr Waldock had poked him in the buttocks with his finger.
He recalled that Mr Ford had complained about being poked in the “bottom”.
Mr Waldock and Mr Rafferty poked him in the buttocks with their fingers, in the feather room and in the hanging room, when he was bent over picking up something off the floor.
Mr Ly
916 Mr Ly, in the First Ly Affidavit, deposed:
He had seen Mr Waldock, Mr Rafferty and Mr Mole “forcing their fingers up the anus of another staff member”.
He had seen Mr Rafferty and Mr Waldock poke their fingers into Mr Ford’s bum in the feather room.
Mr Rafferty and Mr Waldock had poked him up the anus when he was bent over working in the feather room.
917 In the Third Ly Affidavit, Mr Ly deposed:
He had seen Mr Waldock and Mr Rafferty “forcing their fingers up the anus of another staff member” on a “few occasions”. He had seen Mr Rafferty do this to Mr Waldock and seen Mr Waldock do this to Mr Rafferty and Noora (another worker).
On two occasions, at the end of his shift whilst he was cleaning in the feather room, he had seen Mr Rafferty and Mr Waldock, separately, poke Mr Ford in the anus in the feather room. He could not recall the dates of these incidents.
He had seen Mr Rafferty and Mr Waldock engage in the conduct towards Mr Ford in the feather room when Mr Ly was in there assisting with cleaning at the end of his shift.
Mr Rafferty and Mr Waldock would also, on occasion, poke him in the “arse”.
The conduct would also occur to him in the hanging room, however most of the time he was subjected to the conduct in the feather room whilst he was cleaning at the end of his shift.
Evidence of the respondents
Mr Rafferty
918 Mr Rafferty gave the following evidence in his affidavit sworn 7 July 2018:
Gay Fridays had involved conduct such as employees poking, grabbing or slapping other employees’ buttocks.
The conduct associated with, or following on from, Gay Fridays included employees poking or prodding other employees’ buttocks with their fingers or metal poles.
Conduct associated with, or following on from, Gay Fridays was engaged in on a regular basis by a number of different employees working on the afternoon or night shift in the Red Area.
From around 2010 to 2011, he did not experience, nor engage in, such conduct as much. The conduct reduced even further as more people from non-English speaking backgrounds commenced working at Inghams.
He had never engaged in poking or forcing his finger (or a squeegee mop handle) into anyone’s anus, and he had never done so to Mr Ford, Mr Bhardwaj or Mr Ly.
919 In relation to the employees that had engaged in the conduct, Mr Rafferty had the following relevant exchange during cross-examination:
And so you had people even do worse. People poked their fingers into you – into your region of your anus, yes?---Yes.
Who did that?---Thomas Dunn, Jordan.
Brenden Waldock?---It’s hard because, like, you ask who did it, but then if you ask me who didn’t do it, I would have trouble answering that too, because I can’t remember the names. It – like, if you ask me who didn’t do this to you in this area, I would also struggle to answer that question because I can’t remember names.
HER HONOUR: You can’t remember names of - - -?---Of the people.
Right?---Yes. So – and Kye who poked me with the pole, but not in like an aggressive way, but when I had been working on the cooper. But people – when you used to work on the cooper area, there was a big pole there, and they would poke you, even just in the cheek. Like, they would poke with it. Like, up on the Cooper. And that had happened in there. I know Thomas Dunn would hit me in the – getting a drink at the water fountain and slap me really hard. Yes, that had happened. I can’t remember other names but I’m sure there would have been more people.
MR REIDY: Brenden Waldock poke you with his finger in your anus, did he?---Brenden would have poked me in the bum but not in like all the way up the - - -
No, no?--- - - - anus, yes. Not in a - - -
Sexual way?---Yes, he may have not, that I can remember a time. I’m sure he would have done it. It wasn’t regular if he did do it.
Wade Phillips?---Probably.
And who used the pole to poke you in the region of the anus?---So that was back when I used to be on the cooper, which would have been a year after I started.
(Transcript pp 536-537.)
920 Mr Rafferty also gave evidence during cross-examination that no supervisors had been present, to his knowledge, when a worker was poked in the bottom (transcript p 540 ll 21-30).
921 Mr Rafferty strongly denied that he had ever poked Mr Ford in the anus:
- - you’ve described this upward motion?---Yes.
And that’s the same motion that you would use to poke someone, isn’t it?---No.
Well, what motion would you use to poke someone?---I don’t know, because I didn’t poke Richard Ford in the bum.
Well, you answered “No”, you wouldn’t use that motion, and I’m asking you what motion would you use?---I don’t know what motion I would use to do this, because I did not insert my fingers into someone’s bum.
Poked him in the bum. Not insert; poke?---I did not poke Richard in the bum.
Ever? Ever, Mr Rafferty?---I never poked Richard Ford in the bum.
(Transcript p 558 ll 14-27.)
922 In relation to Mr Ogg’s evidence, that Mr Ogg had seen Mr Rafferty poke people in the anus, Mr Rafferty had the following relevant exchange during cross-examination:
And, you see, I’m suggesting to you, Mr Rafferty, that you, in fact, did do that, that is, poke other employees on the outside of their anus with your finger?---No, I didn’t.
You’re saying that under oath?---Yes.
Because Mr Ogg says that you did, that he witnessed you doing this in the feather room?---I did not.
Well, why would Mr Ogg say that?
MS REECE: Your Honour, I object to that question.
HER HONOUR: No, I will allow that – allow the question.
MR REIDY: Thank you?---Because Kahu Ogg is good friends with Richard. That’s the only reason I can see him saying that.
And that’s the only reason you can think of?---Yes. Kahu Ogg did not see me poking anyone in the anal region because it didn’t happen.
And he says that you and Waldock engaged in that conduct quite regularly in the feather room?---No, we didn’t poke each other in the anus in the feather room.
Poke each other in the anus?---We didn’t.
Poke other workers in the anus?---No.
(Transcript p 565-566.)
Mr Waldock
923 Mr Waldock, in his affidavit affirmed 5 July 2018, denied that he had ever touched a worker on the bottom, with the exception of a pat on the backside that was in no way sexual. Mr Waldock also denied having ever poked his finger into Mr Lucht’s anus or the anus of any other co-worker (including Mr Ly and Mr Bhardwaj).
924 During cross-examination Mr Waldock specifically denied ever having poked Mr Bhardwaj, Mr Ly, Mr Ford or Mr Ogg in the anus (transcript p 619-620).
Mr Lucht
925 Mr Lucht, in his affidavit affirmed 10 July 2018, strongly denied that he was ever poked in the anus by Mr Waldock (or anybody else) during his employment at Inghams.
Mr Phillips
926 In his affidavit affirmed 6 July 2018, Mr Phillips denied that he ever poked Mr Ford in the anus as Mr Ford alleged, or that he had ever touched another worker near their buttocks, other than to pat another co-worker on the buttocks. Mr Phillips also noted that when he was originally told of the allegation during the workplace investigation, he was told the allegation was that the conduct happened in around October 2015.
927 The only reference to this incident during the cross-examination of Mr Phillips was as follows:
Do you think using a finger to poke into someone’s anus is a joke?---No.
In the workplace, as part of the camaraderie, mates bonding, would it be an acceptable thing to do?---No.
Say, having known work mates for a period of time, would that be okay to do?---That would be up to the people involved but, no, nothing I’ve done.
So nothing you’ve done, but you do have a view that it depends on the people involved?---Well, I don’t really get a view because I’m not involved.
So it’s too hard for you to answer the question because you’re not involved?---Well, it doesn’t involve or concern me, and that people – if that’s what they’re into, then it has got nothing to do with me.
And you know that Richard says while he was bent over the table you used your finger and poked him in the area of his anus?---I am aware of the accusation, yes.
Yes. But you don’t have any knowledge, is this the case, of that sort of conduct being part of a joke in the Inghams’ red area?---No. Not that I’m aware of.
(Transcript p 680 ll 13-32.)
Other witnesses
928 Mr Rahiwi, Mr Mole, Mr Chan, Mr Dhanoa, Mr Levaai, Mr Hannett, Mr Johnson, Mr Okoro, Mr Flanders and Ms Horne all made statements in late November 2016 or early December 2016, during the workplace investigation, that they had never seen, heard of, nor been the perpetrator of forcing a finger into the anus of another worker at Inghams. Their statements were annexed to their respective affidavits. Otherwise, these witnesses gave no further evidence concerning these allegations.
Consideration
929 Agreed Issues 1(f), 1(i) and 1(l) all related to alleged similar conduct, by Mr Rafferty and/or Mr Waldock, in the feather room. Agreed Issue 1(j) related to alleged similar conduct, but by Mr Phillips, in a different area of the premises of Inghams Murarrie. While the conduct is similar, the differences warrant separate consideration of Agreed Issue 1(j).
930 Overall, I am not persuaded that any of the applicant’s claims of poking, either of himself or Mr Lucht, are substantiated. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, and for the following reasons.
Agreed Issues 1(f), 1(i) and 1(l)
931 In relation to Agreed Issue 1(f), the applicant relevantly submitted, in summary:
Mr Rafferty’s statement to Mr Ford, “Doesn’t Brenden do this to you?”, after Mr Rafferty poked Mr Ford in the anus recognised Mr Waldock’s dominant position and his close friendship with Mr Rafferty.
Mr Rafferty admitted that he had made contact with Mr Ford’s bottom at about the same time that Mr Ford alleged this incident occurred, and agreed that Mr Ford had an angry response.
Mr Rafferty’s evidence was inconsistent. For example, he gave evidence that he touched Mr Ford’s buttocks to wake him up, but also gave evidence that he doubted Mr Ford would have been asleep, and that he touched Mr Ford’s buttocks to get Mr Ford’s attention in a noisy room.
Mr Rafferty’s affidavit makes no mention of Mr Ford being asleep.
Mr Rafferty’s story is implausible and inconsistent.
Mr Rafferty embellished his oral evidence to add the reference to Mr Ford sleeping to give him an excuse.
Mr Rafferty’s versions changed from slapping Mr Ford on the buttocks to a gentle push.
Mr Rafferty demonstrated the upward motion of a poke, rather than the more likely sideways motion of a slap, in contending that he had only slapped Mr Ford on the buttocks.
It is unchallenged that Mr Ford felt hollowed out, bewildered, ashamed, had concentration difficulties, and had to start taking days off work, as a result of the conduct.
Mr Ford’s evidence should be accepted over the evidence of Mr Rafferty. Mr Rafferty was not a credible witness.
Mr Rafferty did not deny that he had the opportunity and the means to engage in the conduct.
Mr Rafferty would feel protected by the supervisor and leading hands.
Mr Rafferty had every reason to “indulge in this conduct”. He saw this type of conduct as a joke and being friendly, and that was his motivation.
Mr Ly witnessed Mr Rafferty and Mr Waldock poke their fingers into Mr Ford’s anus on two occasions. Mr Ly’s evidence that he heard Mr Ford tell Mr Rafferty and Mr Waldock to stop when they subjected Mr Ford to the conduct corresponded with Mr Ford’s evidence.
The Court should infer from the evidence of the culture or system that it was highly probable that this event occurred.
The circumstantial evidence and the tendency evidence are highly probative and support a finding that the conduct occurred.
932 In relation to Agreed Issue 1(i), the applicant relevantly submitted, in summary:
The conduct made Mr Ford feel that he had been pushed to the limit, such that he had thoughts of self-harm. Mr Ford was placed on his first suicide prevention plan only a short time later.
The evidence of Mr Ford should be preferred to the evidence of Mr Waldock.
Mr Ly witnessed Mr Waldock poke Mr Ford in the anus.
The circumstantial evidence, the tendency evidence and the evidence of a culture or system support the drawing of an inference that the conduct occurred. It was part of a “strong and vibrant system where this particular form of conduct had cachet”. Mr Rafferty and Mr Waldock in particular used to engage in the conduct towards each other.
933 In relation to Agreed Issue 1(l), the applicant relevantly submitted, in summary:
Mr Lucht was an unimpressive and unreliable witness. It was not credible that someone supervising the feather room was, on his account, so rarely in there. Other witnesses saw him in there.
Mr Lucht presented as a witness whose defence was that he knew nothing and was never there. However, he was a leading hand, a member of the “power clique”, and the longest serving employee.
It is telling that he claimed to have never heard of Gay Fridays. It is also telling that he claimed to have never seen any buttocks slapping at Inghams in all his time there.
At best, Mr Lucht’s approach was to bury his head in the sand, let employees who were part of his “clique” do what they wanted to do, and bury any complaints (such as those made by Mr Bhardwaj).
It is easy to imagine Mr Lucht standing there and allowing Mr Waldock to engage in the conduct, recognising that Mr Lucht did not want to upset one of his “inner circle”.
The evidence of Mr Ogg and Mr Bhardwaj, that Mr Lucht had passively participated in the conduct, demonstrated that Mr Lucht was willing to countenance the behaviour and stand idly by while it occurred, even to the extent of allowing it to happen to him.
Mr Ford’s evidence should be accepted over the evidence of Mr Waldock and Mr Lucht.
The circumstantial evidence, the evidence of a culture or system and the tendency evidence support the drawing of an inference that Mr Waldock engaged in the alleged conduct towards Mr Lucht.
934 The respondents relevantly submitted:
Mr Ford’s evidence was that the conduct alleged in Agreed Issue 1(f) occurred without witnesses. However, Mr Ly gave evidence of having witnessed Mr Rafferty poke his finger into Mr Ford’s buttocks.
Contrary to Mr Ford’s evidence, Mr Ogg gave evidence that Mr Ford complained about being poked in the buttocks.
There was clear evidence of collusion between Mr Ford and his witnesses, which went much of the way to establishing the inference that the evidence of the applicant’s witnesses was contaminated and should be given no weight.
Mr Ogg, in the Fourth Ogg Affidavit, for the first time, and two years after providing his first statement, stated that he was poked up the anus by Mr Rafferty and Mr Waldock.
935 First, in relation to Agreed Issues 1(f), 1(i) and 1(l), the evidence of Mr Bhardwaj, Mr Ogg and Mr Ly on which Mr Ford relies lacks credibility.
936 Mr Bhardwaj’s evidence was vague, general in nature, and lacked reference to a time period. Further, in the First Bhardwaj Affidavit, Mr Bhardwaj gave evidence that the conduct was engaged in against him by Mr Rafferty, Mr Waldock, Mr Phillips and Mr Mole. This was inconsistent with his later evidence, in the Third Bhardwaj Affidavit, where Mr Bhardwaj deposed that only Mr Phillips and Mr Waldock engaged in the conduct against him.
937 I have already made adverse findings in relation to Mr Bhardwaj’s credit. In particular, I observed that his evidence relating to allegations of sexual harassment appeared to be an embellishment of the poor relationships he had with co-workers, and his perception that Inghams’ management was both unsupportive of his concerns and bullied him.
938 I consider that the same concerns that I have had with Mr Bhardwaj’s evidence in other respects extend to his evidence in respect of Agreed Issues 1(f), 1(i) and 1(l).
939 In relation to Mr Ogg, I have also already observed that I consider his evidence to be unreliable. Specifically, in relation to Agreed Issues 1(f), 1(i) and 1(l), I note that:
During cross examination, Mr Ogg agreed on several occasions that, following the incident involving Mr Hill, nothing serious like that conduct had subsequently happened: “may be [sic] a pat on the back side and that, but nothing like that really that I can remember” (transcript p 448 ll 21-30; 456 ll 16-19). This is inconsistent with his evidence that the finger poking conduct occurred during the period Mr Ford worked at Inghams.
Mr Ogg’s evidence of the alleged regularity of being poked in the anus, and the perpetrators of that conduct, was inconsistent, particularly between the Third and Fourth Ogg affidavits.
940 Having already noted my serious concerns in relation to the reliability of Mr Ogg’s evidence, and having regard to the noted inconsistencies in relation to the evidence he gave concerning the alleged conduct, I place no weight on the evidence of Mr Ogg in relation to these issues.
941 Similarly to Mr Ogg and Mr Bhardwaj, Mr Ly’s evidence was devoid of dates or time periods. The only suggestion that Mr Ly provided as to the time period for Mr Waldock, Mr Rafferty and Mr Mole committing digital acts of anal intrusion on other workers was before 2015. In particular, I note the following exchange during cross-examination:
I will ask it more – I will ask you more specifically, Mr Ly. First of all, I suggest to you that at no time did Brendan [sic] Waldock, Michael Rafferty and George Mole force their fingers up the anus of another staff member?---You suggest – what do you mean by you suggest?
So what I mean by that is – I’m telling you that that never happened. So you can either agree or disagree or say something in response?---I don’t agree.
Okay. So when do you say that they were doing those sorts of things? Was it prior to 2015? Was it after 2015?---Before 2015.
(Transcript p 477 ll 37-46.)
942 Second, in respect of Mr Ford’s evidence concerning these issues, there are inconsistencies between that evidence, the evidence of the witnesses on whose evidence he relies, and the evidence of co-workers to whom the alleged acts of poking occurred.
943 In particular, I note that:
Mr Ogg claimed that Mr Ford had complained to him about being poked “in the bottom”. However, Mr Ford gave evidence that he never complained about the alleged incident in which Mr Rafferty poked him because “he felt ashamed”.
Mr Lucht categorically denied that Mr Waldock had poked him in the anus as Mr Ford alleged.
Despite Mr Ford’s evidence that other co-workers were present when Mr Lucht was poked in the region of his anus, no credible evidence to that effect was given by any witness. The applicant submitted that Mr Bhardwaj and Mr Ogg had witnessed this conduct. However, Mr Ogg’s evidence to this effect was redacted in the First Ogg Affidavit, though later mentioned in the Fourth Ogg Affidavit. I have already found the evidence in the Fourth Ogg Affidavit to be unreliable. Further, Mr Bhardwaj only gave evidence of having witnessed Mr Lucht be dry humped.
944 Third, it seems remarkable that, despite Mr Ogg, Mr Bhardwaj and Mr Ly giving evidence that they had all been digitally poked in the anus in the feather room at the end of their shift when they were assisting with the cleaning, neither Mr Ford nor any other witness gave evidence of having witnessed such conduct occurring. Whilst Mr Bhardwaj only gave evidence of the conduct occurring to him on three occasions, Mr Ogg claimed it occurred to him approximately twice per month and Mr Ly claimed it occurred “on occasion”.
945 Nor did Mr Ogg, Mr Bhardwaj or Mr Ly give evidence that they witnessed such conduct occur to each other or were aware that such conduct occurred to each other.
946 I note the only evidence given by Mr Ford that suggested he had witnessed conduct occur to Mr Bhardwaj was in his later affidavit sworn 6 August 2018, namely:
18. …Mr Bhardwaj was outspoken in relation to the conduct described in my 4 June affidavit when it was directed towards him. He seemed visibly annoyed and upset by the conduct and I witnessed him tell the perpetrators of the conduct to stop. When they did not stop, I heard Mr Bhardwaj use words to the effect of “go away”, “piss off” and “fuck off”…
947 Mr Ford does not clarify the “conduct described in my 4 June affidavit” to which Mr Bhardwaj was allegedly subjected.
948 Mr Ford was cross-examined in relation to his absence of reference to Mr Bhardwaj. He gave the following evidence:
At your affidavit, your second affidavit, paragraph 18, you talked about Jatin Bhardwaj?---18.
…
Do you remember that paragraph of your evidence?---Vaguely, yes.
Well, is that your evidence?---Yes.
You went through a process of sitting down with your lawyers and drafting this affidavit?---Yes.
Making sure that it was the truth - - -?---Yes.
- - - to the best of your recollection?---Yes.
And then you swore that it was?---Yes.
And you signed every page?---Yes.
Mr Bhardwaj wasn’t mentioned at all in your first affidavit, Mr Ford?---I’m unsure.
Are you able to comment on that other than you’re not sure?---No.
You’ve not mentioned in your first affidavit that anything of this nature happened to
Mr Bhardwaj?---I’m not sure.
…
Mr Ford, when you said in paragraph 18 that I’ve just taken you to – when you said:
Mr Bhardwaj was outspoken in relation to the conduct described in my 4 June affidavit when it was directed towards him.
What conduct are you talking about?---The way he was being treated with the dry humping and people being racially abusive to him and he had gone up and spoken to Mark Chan about it on numerous occasions.
Had you been with him when he made those complaints?---I beg your pardon?
Were you with him when he made those complaints?---No.
Did you see any of this actually happen to him?---I can’t recall. It happened to a lot of workers.
I’m sorry?---It happened to a lot of workers.
Who else did it happen to?---Young Dougall by Michael Rafferty ramming his finger up his arse on stand number 2, on line 2 in the feather room just prior to me leaving.
Anyone else?---There’s quite a few employees. A few of them I have in my affidavit that I done a year ago, but since then I’ve remembered a few more, I think, but I might have just forgotten them soon. I will just have a - - -
(Transcript p 133-137.)
949 This evidence of Mr Ford is inconclusive, and appears to raise new material which he claimed to have remembered only after swearing his last affidavit. I consider this evidence of Mr Ford to be unreliable.
950 Fourth, as I have already observed, there is evidence given by a number of workers at Inghams (specifically Mr Rahiwi, Mr Mole, Mr Chan, Mr Dhanoa, Mr Levaai, Mr Hannett, Mr Johnson, Mr Okoro, Mr Flanders and Ms Horne) to the effect that they had never seen, heard of, nor been the perpetrator of forcing a finger into the anus of another worker at Inghams. Contrary to the submissions of the applicant, the weight of evidence does not support the existence of a culture at Inghams where workers would routinely force their fingers into the anuses of co-workers.
951 Fifth, and specifically in relation to Agreed Issue 1(f), I prefer the evidence of Mr Rafferty to that of Mr Ford. Mr Rafferty admitted to slapping Mr Ford on the buttocks, once, during the time they were both employed by Inghams. I have already examined this aspect of Mr Ford’s claim, and found that this conduct occurred. I am not persuaded that Mr Ford’s claim of anus-poking by Mr Rafferty is other than an embellishment by Mr Ford of this admitted conduct on the part of Mr Rafferty. I am not persuaded by submissions of the applicant concerning the alleged trajectory of Mr Rafferty’s hand as being more consistent with “poking” rather than “slapping” Mr Ford.
952 Further, insofar as I can ascertain from examination of the transcript, Counsel for Mr Ford did not put to Mr Rafferty that he “had the opportunity” to poke Mr Ford in the anus. Even if such an opportunity did present itself to Mr Rafferty, I do not accept the applicant’s submission that simply because Mr Rafferty “had the opportunity” to poke Mr Ford in the anus, he actually did so. I am not persuaded of the existence of reliable tendency evidence to support a submission in these terms.
953 I also reject Mr Ford’s evidence of words used by Mr Rafferty at the time Mr Rafferty allegedly poked Mr Ford in the anus, and the imputation the applicant submitted could properly be drawn from those alleged words.
954 Sixth, I reject the applicant’s submission that Mr Rafferty would have felt “protected by the supervisor and the leading hands” – no evidence of any substance has been advanced that Mr Rafferty was accorded protection from discipline for improper conduct at Inghams. Indeed, Mr Rafferty gave evidence that Mr Hannett was strict as a supervisor in respect of inappropriate conduct, and that Mr Chan was very professional in his management responsibilities (see for example transcript p 538 ll 1-12). This evidence is inconsistent with allegations of protection of Mr Rafferty, as submitted by the applicant. Whilst Mr Rafferty deposed that he was never “formally disciplined or counselled” for engaging in conduct associated with, or following on from, Gay Fridays, his oral evidence suggested that supervisors were generally not present for that conduct and would not have tolerated it (transcript pp 542-544).
955 Seventh, and specifically in relation to Agreed Issue 1(i), I prefer the evidence of Mr Waldock to the evidence of Mr Ford.
956 The evidence before the Court was that Mr Waldock and Mr Ford were friends, socialising outside of working hours. Mr Ford’s particularisation of Mr Waldock’s alleged graphic comments to Mr Ford, and the alleged hostility of Mr Waldock to Mr Ford, at the time of the alleged incident in August 2016 are inconsistent with their apparent friendship at the time.
957 Further, Mr Ford gave evidence that the conduct the subject of Agreed Issue 1(i) did not cause him to feel lasting physical pain. I query whether the force which would have been required to have been applied by Mr Waldock to Mr Ford’s body, in order for Mr Waldock’s finger to enter Mr Ford’s anus, through three layers of Mr Ford’s clothing, and remain there for three to five seconds, would not have caused at least some physical pain, or indeed injury, to Mr Ford.
958 In my view the evidence of Mr Ford in respect of this allegation is implausible.
959 Eighth, and specifically in relation to Agreed Issue 1(l), I prefer the evidence of Mr Waldock and Mr Lucht to that of Mr Ford.
960 While I have concerns about Mr Lucht’s evidence concerning the use of abusive language among workers at Inghams, I consider it implausible that Mr Lucht would have tolerated conduct towards him by Mr Waldock of the highly intrusive nature alleged by Mr Ford. I have no reason to doubt the denial of Mr Lucht that the incident as alleged by Mr Ford occurred.
961 Mr Lucht’s evidence is consistent with Mr Rafferty’s evidence that:
…--- No supervisors had been present, to my knowledge, when someone got poked in the bum.
(Transcript p 540 ll 29-30.)
962 In my view Agreed Issues 1(f), 1(i) and 1(l) have not been substantiated.
Agreed Issue 1 (j)
963 In relation to Agreed Issue 1(j), the applicant relevantly submitted, in summary:
The evidence of Mr Ford should be preferred to the evidence of Mr Phillips.
Mr Phillips had reason to lie about Gay Fridays and the activity of touching buttocks. His conduct was consistent with a guilty mind.
Mr Phillips was identified by Mr Rafferty as engaging in conduct that was associated with Gay Fridays.
The circumstantial evidence, the evidence of a system or culture and the tendency evidence support the applicant’s case.
964 In relation to Agreed Issue 1(j), I find as follows.
965 First, as I have already observed, the weight of evidence before the Court supports a finding that there was no culture at Inghams at the time that Mr Ford worked there where workers poked their fingers into the anuses of co-workers.
966 Second, other than Mr Ford’s evidence, the only evidence supporting a tendency on the part of Mr Phillips to poke his fingers into “the bottoms” of co-workers was evidence of Mr Bhardwaj, who gave evidence that Mr Phillips had poked him in the anus twice, in the feather room. However, in my view, for reasons I have already given, the evidence of Mr Bhardwaj in respect of such conduct lacks credibility.
967 Third, Mr Ford’s allegation as to when the alleged incident involving Mr Phillips occurred was inconsistent. In particular, in his AHRC complaint and police statement Mr Ford alleged that the relevant conduct had occurred in October 2015, however in these proceedings he subsequently claimed that the incident occurred in February 2016. In the ordinary course, one would assume that Mr Ford’s memory of when the alleged incident occurred would have been more accurate closer to the time of occurrence, namely at the time of the earlier AHRC complaint. While not fatal to Mr Ford’s case, the disparity in dates weakens this aspect of his claim.
968 The evidence before the Court was that Mr Ford was socialising outside of work hours with Mr Phillips at least as late as December 2015 or January 2016 (transcript p 112 ll 22-45). The existence of a friendship between Mr Ford and Mr Phillips at that time is inconsistent with the conduct alleged by Mr Ford to have been perpetrated by Mr Phillips in February 2016 (and particularly if the conduct alleged by Mr Ford had occurred in October 2015, as it appears he originally alleged).
969 Fourth, there was very little cross-examination of Mr Phillips to test his denial of Mr Ford’s claim. However, overall, I considered Mr Phillips to be a credible witness, and I prefer his evidence in respect of this allegation to the evidence of Mr Ford.
970 In my view this aspect of Mr Ford’s claim has not been substantiated.
Agreed Issue 1(g): The Second Respondent in about early 2016 engaged in the conduct of using a squeegee mop handle to poke the Applicant in the anus in the feather room as alleged in paragraph 31 of the RFASOC.
971 This issue is referable to paras 31 to 33 of the RFASOC, which provide:
Rafferty anally assaults Mr Ford with the handle of a squeegee
31. In about early 2016, in the feather room, Rafferty poked Mr Ford forcefully in the anus with a squeegee handle (the “conduct”).
32. Mr Ford:
(a) Did not solicit the conduct pleaded in paragraph 31 above;
(b) Communicated to Rafferty that the conduct was unwelcome by immediately telling Rafferty to “piss off”.
33. The conduct of Rafferty caused Mr Ford:
(a) to feel immediate physical discomfort;
(b) immediate anger which he did not and felt unable to act on;
(c) immediate shock, offence, humiliation, intimidation and revulsion;
(d) the symptoms and reactions in paragraph 20 above.
972 In his amended defence, the second respondent denied paras 31 to 33 of the RFASOC.
Evidence of the applicant
Mr Ford
973 Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [216]-[223]:
In early 2016, when he was on an afternoon shift working on a platform plucking feathers off the birds in the feather room, he felt a hard object being poked into his anus from the outside of the thin cotton pants over his shorts.
He felt a moderate force in his anus region for a couple of seconds. The object was not pushed inside his anus, but stopped outside. He did not feel any lasting physical pain.
He turned around and saw Mr Rafferty was standing behind him holding a squeegee in his hand, laughing.
A squeegee is a type of mop or broom with a flat rubber blade attached to a mop/broom handle. It is used to clean chicken heads, feathers and blood off the floor and to pull birds out from under the machinery.
Mr Ford immediately said words to the effect of “piss off” and also told Mr Rafferty to “fuck off”.
He believed the event happened around early February 2016, as it occurred not long after he returned from the Christmas break, but before he travelled to New Zealand on 19 February 2016.
He felt that he had no choice except to continue working because of his financial commitments.
974 Mr Ford also deposed at [264] that Mr Muhic had told Mr Ford that Mr Muhic had made a complaint about inappropriate sexual behaviour, which included a complaint that another worker had inserted a rod up Mr Muhic’s anus. When questioned about this allegation during cross-examination, Mr Ford stated he was unsure whether Mr Muhic had told him this, and that he did “not recall the events” (transcript p 292 ll 9-17).
Mr Ogg
975 In the Second Ogg Affidavit, Mr Ogg deposed relevantly as follows:
3. I have read the affidavit of Wade Martin Phillips sworn 6 July 2018 (Phillips Affidavit). In response to paragraph 12 of the Phillips Affidavit, I disagree with Mr Phillips’ version of events. I was standing up on a platform fixing a machine that had broken down. Mr Hill was standing below me and I had my back faced to Mr Hill. Mr Hill forcefully poked me with a steel rod that is used to clear the birds’ feet out of the modules. The steel rod went in between my buttocks and I felt it touch my anus. The poke lasted several seconds. It was not painful or hard but firm enough to feel. I was quite angry when this happened to me. I recall swearing at Mr Hill and saying words to the effect of “what the fuck are you doing?” and “fuck off”. I did not find it funny.
976 Documentary evidence supporting the occurrence of this incident was filed by the respondents as an annexure to the affidavit of Mr Story sworn 9 July 2018. In particular, I note Annexure DS-5 to that affidavit, which is a “record of employee discussion form” referable to a disciplinary meeting taking place on 17 April 2014 concerning this incident. Relevantly, the form includes the following:
Nature and Details of Issue or Alleged Offence/s …
On Thursday 10-04-14 Kahu Ogg made a written complaint against Jordan Hill. Kahu stated that he was the bright coop operator and had just unjamed [sic] a module and was trying to restart the bright coop when Jordan came from the hanging room yelling at him to hurry up and then poked him in the backside with a steel rod.
This incident was witnessed by Wade Phillips, Sax Johnson and Phon Nam who all made statements.
At a meeting on Tuesday 16-04-14 with Peter Bissett, Glenn Hannett and Tim Mutemi (union delegate) it was explained to Jordan that this sort of behavior [sic] is not acceptable in the work place. It comes under bullying and harassment. This is a breach of company policy, horse play in the work place as well as inappropriate behavior. [sic]
Due to the nature of this incident Jordan will receive a final written warning as well as 1 days suspension in lieu of termination (served on 16-04-14).
977 Also in that form, under the heading “Employee’s Response”, was the following:
Jordan admitted to poking Kahu but did not mean anything by it. Jordan said he was trying to get the attention of Kahu to hand the steel rod back which had been given to him by the fork lift driver.
The company does not deem this as an acceptable explanation.
978 In the Fourth Ogg Affidavit, Mr Ogg deposed at [26] that he recalled being poked in the “butt” with a squeegee handle by Mr Rafferty when Mr Ogg was bending over in the hanging room to pick up a dead bird.
Mr Bhardwaj
979 Mr Bhardwaj deposed (in the First Bhardwaj Affidavit) to Mr Mole, Mr Rafferty, Mr Waldock and Mr Phillips poking their fingers “in the bottom of other workers” in the feather room. He did not depose to objects being used. I have previously dealt with the respondents’ objections to this evidence in relation to Agreed Issues 1(f), 1(i), 1(j) and 1(l).
Mr Ly
980 Similarly to Mr Bhardwaj, Mr Ly deposed to Mr Rafferty and Mr Waldock poking “their fingers into Richard’s bum” and poking Mr Ly in the anus. Mr Ly did not depose to objects being used.
Evidence of the respondents
Mr Rafferty
981 Mr Rafferty, in his affidavit sworn 7 July 2018, relevantly deposed:
Employees had poked or prodded other employee’s buttocks with their fingers or metal poles from early in his employment, as part of the conduct associated with, or following on from, Gay Fridays.
Conduct associated with, or following on from, Gay Fridays was engaged in on a regular basis by a number of different employees working on the afternoon or night shift in the Red Area.
He had been subjected to such conduct.
He experienced less of this conduct when he went to work on the forklifts in 2010 or 2011.
He had not personally engaged in poking any item or his finger into the anus of any co-worker at Inghams, including Mr Ford.
982 In relation to when such conduct occurred and who engaged in the conduct, Mr Rafferty gave the following evidence during cross-examination:
And who used the pole to poke you in the region of the anus?---So that was back when I used to be on the cooper, which would have been a year after I started.
HER HONOUR: What’s “the cooper”?---So the cooper is a – when you hang chicken, they rotate you out to this thing called a cooper, and it dumps the chicken. You would stand up there and operate it, and the forklift driver would load it. And people would be up there, because you would be, like, falling asleep up there, and people would just come. You would be nodding off, and they would come and just shove you with the pole.
How long was the pole?---How long was the pole? Like, here to the wall, maybe. Yes.
So – hang on, I can’t see how - - -?---Sorry. Probably two metres, three metres. I can’t recall, because it was – it was a very long time ago. I was only – I would’ve been 23, 24 back then. I’m – yes, a long time ago, yes, since I’ve been poked by the pole, but I’ve seen people do it when driving the forklift. Yes, but not – yes.
(Transcript p 537 ll 20-36.)
983 As previously noted, Mr Rafferty’s evidence during re-examination was that the conduct associated with, or following on from, Gay Fridays that had historically occurred in the Red Area at Inghams, and particularly the hanging room, had become less common after a few years as more employees from non-English speaking backgrounds were employed, and had ceased by the time Mark Chan became the production manager at Inghams in November 2015 (transcript pp 522, 592-593).
Other witnesses
984 Mr Phillips gave no evidence relevant to this issue, with the exception of evidence during cross-examination concerning the incident between Mr Ogg and Mr Hill (transcript pp 669-670).
985 No other witness for the respondents gave evidence concerning this issue.
Consideration
986 The applicant relevantly submitted, in summary:
Mr Ford’s evidence should be preferred to the evidence of Mr Rafferty.
The circumstantial evidence, the evidence of a culture or system and the tendency evidence support the drawing of an inference that it is highly probable that Mr Rafferty engaged in the conduct alleged in Agreed Issue 1(g).
Mr Rafferty has exhibited some cruel and nasty traits, and that was “in keeping with” this.
987 The respondents relevantly submitted, in summary:
The AHRC complaint stated that Mr Ford witnessed metal poles being poked into other employees’ buttocks by co-workers, a replica of the incident between Mr Ogg and Mr Hill. Mr Ford was not employed at the time of that incident and did not give any evidence of his alleged witnessing of such conduct since the AHRC complaint.
There was clear evidence of collusion between Mr Ford and his witnesses, which went much of the way to establishing the inference that evidence of the applicant’s witnesses was contaminated. For example, Mr Ogg stated only in the Fourth Ogg Affidavit that he was poked with a squeegee handle – a new allegation, identical to Mr Ford’s complaint in Agreed Issue 1(g).
988 In respect of this aspect of Mr Ford’s complaint, in my view it is not substantiated. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, and for the following reasons.
989 First, to the extent that Mr Ogg gives evidence in support of Mr Ford’s claim, I consider that Mr Ogg’s evidence is unreliable. In particular, I note that:
I have already referred to a substantiated incident in April 2014, where Mr Ogg was poked in the anus with a steel rod by another employee, Mr Jordan Hill. Mr Ogg agreed more than once during cross-examination that, following that incident involving Mr Hill, no further serious conduct occurred, with the exception of a “pat on the backside” (transcript p 448 ll 21-30; 456 ll 16-19).
If Mr Ogg’s evidence in his affidavit of having been poked in the anus with a squeegee handle by Mr Rafferty related to a period in time after April 2014, it would be inconsistent with his statement that following the incident with Mr Hill, nothing of that nature had occurred again.
If Mr Ogg had been poked in the anus, again, with a squeegee handle as he deposed, I consider it likely that Mr Ogg would have made a formal complaint about such an incident, considering that he did so in relation to Mr Hill engaging in similar conduct towards him.
Mr Ogg only stated in the Fourth Ogg Affidavit that he was poked with a squeegee handle. This fresh allegation, made after his discussions with Mr Ford, is of such striking similarity to Mr Ford’s allegation that I consider Mr Ogg’s evidence of conduct towards him to be implausible and a result of that evidentiary contamination.
990 Other than Mr Ogg’s evidence relating to the incident involving himself and Mr Jordan Hill in 2014, I give no weight to Mr Ogg’s evidence that he was poked in the buttocks or anus with a squeegee handle.
991 Second, for reasons I have already given, I prefer the evidence of Mr Rafferty to the evidence of Mr Ford, including in respect of this aspect of Mr Ford’s claim.
992 Third, I do not accept the applicant’s submission that “Mr Rafferty has exhibited some cruel and nasty traits and this is in keeping with this.” In my view this submission lacks any foundation or merit.
993 Fourth, I consider it likely that, if Mr Ford had been poked in the anus by Mr Rafferty (as Mr Ogg had been by Mr Hill several years before), any complaint by Mr Ford would have been dealt with seriously by Inghams, as it was by Inghams in respect of Mr Ogg’s complaint. To the extent that the applicant asks the Court to accept that Mr Ford was reluctant to complain because of his “financial commitments” or fear of losing his job, I can ascertain no basis on which Mr Ford would have felt constrained from complaining had the relevant conduct actually occurred to him. Such alleged concern or fear was inconsistent with Mr Ford’s complaint against Mr Mole in June 2015, when Mr Mole was disciplined as a result of that complaint.
994 Indeed, when Mr Ford did complain in September 2016 in respect of alleged conduct towards him, Inghams sought to address his complaints by not only an internal investigation but by the appointment of external investigators.
995 In my view this aspect of Mr Ford’s claim has no merit.
Agreed ISSUE 1(h): The Third Respondent in about August 2016 engaged in the conduct of grabbing the Applicant's penis in the feather room as alleged in paragraph 34 of the RFASOC.
996 This issue is referable to paras 34 to 36 of the RFASOC, which provide:
Waldock grabs Mr Ford’s penis
34. In about August 2016, in the feather room, Waldock grabbed Mr Ford’s penis (the “conduct”).
Particulars
(a) Waldock came up behind Mr Ford.
(b) Mr Ford quickly turned to protect himself from Waldock poking him up the anus.
(c) Waldock grabbed Mr Ford’s penis through his shorts.
(d) Mr Ford could feel Waldock’s hands around his penis.
(e) Waldock laughed during the conduct.
35. Mr Ford:
(a) Did not solicit the conduct pleaded in paragraph 34 above;
(b) Communicated to Waldock that the conduct was unwelcome by telling Waldock to “piss off”.
36. The conduct of Waldock pleaded in paragraph 34 caused Mr Ford:
(a) to feel immediate physical discomfort, distress, offence, humiliation, intimidation and belittlement;
(b) the symptoms and reactions in paragraph 20 above.
997 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 34 to 36 of the RFASOC, with the exception of para 35(a), which the third respondent neither admitted nor denied.
Evidence of the applicant
Mr Ford
998 Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [305]–[311]:
When he was working in the feather room in about August 2016, shortly before he was due to leave, Mr Waldock came up behind him. He turned to face Mr Waldock.
Mr Waldock put his hand on top of Mr Ford’s cotton work pants, grabbing around his penis with a moderately firm grip for around 3 seconds. Mr Waldock laughed when he did this.
Mr Ford thought he said “piss off”, or something similar to Mr Waldock.
Mr Waldock walked away without saying anything.
No one else was around.
He kept this incident to himself.
Mr Bhardwaj
999 In the First Bhardwaj Affidavit, Mr Bhardwaj deposed:
He had seen Mr Rafferty, Mr Phillips and Mr Waldock touch Mr Ford in “his groin area”.
He saw them do inappropriate things to Mr Ford constantly, almost every single shift he was in the feather room.
The touching and rubbing of Mr Ford’s groin area was on the outside of his work pants, and would last anywhere from a few seconds up to 15 seconds at a time.
Conduct in the nature of touching and rubbing of the groin area was also directed towards him and other workers.
Mr Ford complained to Mr Bhardwaj about how the behaviour of Mr Waldock and Mr Rafferty made Mr Ford feel uncomfortable.
1000 In the Third Bhardwaj Affidavit, Mr Bhardwaj deposed that he could not recall the dates of such conduct occurring, but the behaviour occurred “out in the open” and he could see it easily when he was working in the feather room.
1001 During cross-examination, Mr Bhardwaj gave the following evidence:
You go on to talk about seeing – I’m sorry. You talk about the touching and rubbing – this is at paragraph 16:
…was done on the groin area on the outside of his work pants. The touching and rubbing would last anywhere from a few seconds up 10 to 15 seconds at a time.
This behaviour was also directed towards you and other workers and you saw it happen to Richard?---Yes.
Are you saying these men would approach you and rub you on your groin area for a few seconds, up to 15 seconds at a time?---Yes. Yes.
Constantly?---Yes.
And you’re saying all three of them would do it?---Yes.
And what sort of time period are we talking about?---We normally finish our hanging for line 1 around 7.30 or between 8. And we finish our shift at, like, 10 past 9.
I mean, more like was it happening in December 2015?---No, I’m not sure about the dates.
Well, do you know when it started?---It always drew once we go and help in the – clean the feathered one for finishing.
I don’t mean in the shift. I mean at a point in time. I mean historically. So you started working at Inghams in 2012?---Yes.
When did it start happening?---When I move in the red area section.
And when was that?---After I think – when I start Inghams in 2012, after maybe seven or eight months I was working in a white area – section – as a boning. Then I moved to red area section.
(Transcript p 188 ll 6-39.)
1002 Mr Bhardwaj gave further oral evidence that Mr Waldock, Mr Rafferty and Mr Phillips touched Mr Ford on his genitals “all the time”:
MS REECE: Mr Bhardwaj, I suggest to you that you never saw Brenden Waldock, Michael Rafferty or Wade Phillips touch Richard Ford on his genitals?---I’ve seen it. They do all the time there.
(Transcript p 195 ll 27-29.)
1003 Mr Bhardwaj also gave evidence during cross-examination of Mr Waldock, Mr Rafferty and Mr Phillips touching Mr Ford’s testicles, and that they had also done so to each other and to him:
MS REECE: So in paragraph 15, you say you saw them – you say Rafferty, Waldock and Phillips touch and pat Richard on the bum?---Yes.
You saw them touch him in the groin area?---Yes.
You then go on to talk about some rubbing in the groin area?---Yes.
Was that the extent of what you saw the doing to Richard?---Yes.
Okay. Nothing else?---Like, grabbing, touching the bum, touching the balls.
Touching the - - -?---You want me to go more open .....
Okay. All right. So - - -?---They pull his pants down too while he’s working. And I’ve seen one time – I will tell you this one too. I’ve seen - - -
Well, Mr Bhardwaj, just hold on a second?---Okay.
Where in your affidavit have you ever said that you saw these two things that you’ve just told the court about? That you – I will just get the exact words, your Honour. That you saw – I asked you what you had seen these three men do to Richard Ford. You’ve now said you saw them touching his balls and pull his pants down - - -?---Yes.
- - - while he’s working?---Yes. They’re grabbing him from the back too .....
Well, would you accept that that’s not in your affidavit, or do we need to go through that process again?---What do you mean? I’ve seen the things that has happened to Richard.
Mr Bhardwaj - - -?---I’ve already put that on paragraph 15 the thing - - -
Yes, you did put them on paragraph 15 - - -?---Yes. So - - -
- - - and paragraph 16?---Yes. So what do you want to ask now?
Well, those things you’ve just talked about - - -?---Yes. These guys done to each other too, they’ve done to Richard too, they’ve done to me.
(Transcript pp 194-195.)
Mr Ly
1004 In the First Ly Affidavit, Mr Ly relevantly deposed:
He had seen Mr Waldock, Mr Rafferty and Mr Mole grabbing other staff members in the area of their genitals.
He had seen Mr Rafferty and Mr Waldock grab Mr Ford in the area of his genitals.
Sexual and inappropriate conduct would happen to Mr Ford at least once or twice per week.
Mr Ford complained to Mr Ly about Mr Rafferty’s and Mr Waldock’s conduct towards Mr Ford.
1005 In the Third Ly Affidavit, Mr Ly deposed:
He had seen Mr Rafferty and Mr Waldock grabbing another staff member in the area of their genitals at least once per week, in the feather room, at the end of his shift.
He had seen Mr Rafferty and Mr Waldock grab Mr Ford in the area of his genitals on many occasions, but he could not recall the dates.
Mr Ford had complained to Mr Ly about Mr Rafferty’s and Mr Waldock’s behaviour on at least two occasions – once in the hallway and once in the locker room at the end of their shift.
1006 In relation to the time period in which such conduct occurred, Mr Ly gave the following evidence:
All right. And what about 6B? I will just take you to – grabbing another staff member in the area of the penis or genitals. First of all, Mr Ly, I suggest to you that Brendan [sic], Michael and Joel – Mole – sorry – George Mole never engaged in that kind of behaviour. So that’s – again I’m saying to you, and you can agree or disagree with it?---I disagree.
And when do you say that that conduct occurred?---That happened when I worked on the afternoon shift in the hanging-room, which was 2014. I worked there two to three years, roughly.
All right. So does that mean that it’s your evidence, it was happening in 2015, ’16?---I can’t give those dates. I’m not aware of the exact dates that I worked there. I’ve changed many times different shifts and different sections.
All right?---But I do say these things happened when I worked there.
(Transcript p 478 ll 1-15.)
Mr Ogg
1007 In the First Ogg Affidavit, Mr Ogg relevantly deposed as follows:
He had had his testicles “cupped”, meaning that someone had grabbed them in their hand.
Mr Ford had described the conduct of Mr Waldock, Mr Rafferty and Mr Phillips to Mr Ogg as including “cupping his genitals”.
1008 In the Third Ogg Affidavit, Mr Ogg relevantly deposed as follows:
Mr Waldock and Mr Rafferty had cupped his testicles or genital area approximately once per week.
He had witnessed Mr Flanders swat Mr Rafferty’s hand away from his crotch after Mr Rafferty tried to grab Mr Flanders’ genital area.
1009 In the Fourth Ogg Affidavit, Mr Ogg relevantly deposed:
He had seen Mr Rafferty and Mr Waldock cup a hand around the area of the other’s testicles on the outside of the pants.
By reference to the evidence he gave in the First Ogg Affidavit – the person who had cupped his testicles was Mr Rafferty. Mr Ogg estimated that this occurred at least five times over the period of his employment.
When Mr Rafferty engaged in the conduct towards Mr Ogg he would sometimes say “Oggie” and then cup Mr Ogg’s testicles, and sometimes he would say nothing.
On each occasion when Mr Rafferty cupped Mr Ogg’s testicles, Mr Ogg would push his hand away. Sometimes Mr Rafferty would continue to try to do it after Mr Ogg had pushed his hand away.
He recalled Mr Ford “spoke about the cupping of genitals”.
By reference to his evidence in the Third Ogg Affidavit that Mr Waldock and Mr Rafferty had cupped his genitals, Mr Ogg stated that this conduct happened in the feather room.
1010 During cross-examination, Mr Ogg gave the following evidence in relation to when Mr Waldock and Mr Rafferty allegedly cupped his testicles:
See at paragraph 10B?---Yes.
You say:
Waldock and Rafferty cupped my testicles and genital area. This happened to me about once per week.
?---Yes; that’s correct.
When are you saying that conduct occurred? What time-frame?---How are you supposed to remember the time-frame?
Well, this is your evidence, Mr Ogg?---It happened to me; that’s all can say.
Are you able to say when that happened?---I can’t the exact date, but it happened, probably, from 2009 to – I don’t know when.
Well, I suggest to you that that conduct did not occur after 2015?---I’m just going off what I can remember, and I know it happened – when I was there, when I first started, it was all happening, but when it come to 2016 and ’18 - - -
You’ve said in your evidence – I’m sorry, your Honour. I withdraw that.
I suggested to you before that gay Fridays was a thing of the past in 2016, that it had not been something at Inghams’ for a number of years. Do you agree with that?---Yes. I didn’t see that happening, gay Fridays, as much then.
…
I will take you to paragraph B of that paragraph 10. So – 10B?---Okay; yes.
When do you say that conduct was occurring?---I would say from 2009 to, maybe, 2015, up to then.
All right?---Just – yes, not regularly, just off – could be on the odd occasion.
Well, you say:
This happened to me about once a week.
What time-frame are you talking about, when you say “once a week”?---When I did say the “once a week”, it was just an estimate of what I could remember. So that’s why the “once per week” was there.
(Transcript p 457 ll 10-35; p 461 ll 29-42.)
Evidence of the respondents
Mr Rafferty
1011 In his affidavit sworn 7 July 2018, Mr Rafferty denied that he had ever “touched, patted, rubbed or grabbed anyone’s penis, genitals or groin”.
1012 During cross-examination, Mr Rafferty also denied having ever touched, patted or grabbed Mr Ford’s genitals (transcript p 579 ll 29-30).
Mr Waldock
1013 In his affidavit affirmed 5 July 2018, Mr Waldock denied that he had ever grabbed or touched Mr Ford’s genitals. He also denied Mr Ly’s allegation that he had ever grabbed another staff member in the area of their genitals.
1014 During cross-examination, Mr Waldock denied that Mr Ly would have seen him grab other workers in the area of their genitals (transcript p 618 ll 38-39).
Other witnesses
1015 Mr Phillips and Mr Collett gave no evidence in relation to this conduct alleged by Mr Ford, and were not cross-examined on this issue.
1016 Mr Okoro, Mr Dhanoa, Mr Levaai, Mr Flanders, Mr Rahiwi, Mr Lucht, Mr Johnson, Mr Chan, Mr Mole and Ms Horne all made statements in late November 2016 or early December 2016, during the workplace investigation, that they had never seen, heard of, nor been the perpetrator of grabbing another worker’s penis at Inghams.
Consideration
1017 The applicant relevantly submitted, in summary:
Mr Bhardwaj and Mr Ly had seen Mr Waldock touch and rub Mr Ford in the genital area on the outside of his work pants, when in the feather room.
The evidence of Mr Ford should be preferred to the evidence of Mr Waldock.
The evidence of a culture or system, the circumstantial evidence and the tendency evidence allow for an inference to be comfortably drawn that Mr Waldock engaged in the conduct alleged in Agreed Issue 1(h).
The evidence showed that Mr Waldock was immersed in the culture of this conduct and one of its prime movers. It fits with other conduct in which Mr Waldock had been allegedly observed to engage, that Mr Waldock would done the act alleged by Mr Ford.
1018 The respondents submitted, in summary:
Evidence of Mr Ogg “suddenly” remembering alleged conduct involving respondents cupping the applicant’s genitals was implausible, particularly given that this conduct was never alleged by the applicant.
The applicant gave evidence that his genitals were “grabbed” in the absence of witnesses, however both Mr Ly and Mr Bhardwaj gave evidence of having witnessed such conduct.
The applicant could not explain why he continued to socialise with Mr Waldock.
The Court should reject the applicant’s submission about a “power clique” of employees and a company-wide rampant attitude of sexual assault and negligence.
Mr Bhardwaj’s evidence of prolonged rubbing of the genitals of workers (including himself and Mr Ford) by Mr Rafferty, Mr Waldock and Mr Phillips for up to 15 seconds was an “extraordinary statement” as the applicant had alleged the conduct against Mr Waldock, on one occasion, with no witnesses.
1019 In my view this aspect of Mr Ford’s case is not substantiated. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, and for the following reasons.
1020 First, I note the evidence of Mr Bhardwaj in the First Bhardwaj Affidavit, that he had witnessed touching and rubbing of Mr Ford’s genitals by Mr Rafferty, Mr Waldock and Mr Phillips, lasting anywhere from a few seconds up to 15 seconds.
1021 In my view, the prospect of Mr Ford tolerating prolonged rubbing of his groin area by a co-worker for periods of up to 15 seconds is simply implausible. I also consider it highly likely that other workers would have witnessed such prolonged contact. In my view this evidence lacks credit.
1022 Second, there is considerable inconsistency, not only between Mr Ford’s evidence and the evidence of co-worker witnesses on whose evidence he relies, but also internal inconsistencies in the evidence of those witnesses. In particular, I note the following:
In relation to Mr Ogg’s evidence:
(a) Inconsistencies between evidence of Mr Ogg and evidence of Mr Ford in relation to this aspect of Mr Ford’s claim included:
(i) Mr Ford’s evidence was that he kept the incident to himself, whereas Mr Ogg gave evidence that Mr Ford complained to him about the “cupping of genitals”.
(ii) Mr Ogg also gave evidence that Mr Ford complained about Mr Rafferty, Mr Waldock and Mr Phillips subjecting Mr Ford to this conduct. However, Mr Ford’s evidence was that only Mr Waldock had grabbed his genitals.
(b) Mr Ogg’s evidence was internally inconsistent. For example:
(i) Mr Ogg claimed in the Third Ogg Affidavit that Mr Waldock and Mr Phillips engaged in the conduct towards him approximately once per week.
(ii) However, Mr Ogg claimed in the Fourth Ogg Affidavit that Mr Rafferty was the person who had engaged in the conduct towards him, and that Mr Rafferty did so approximately five times across Mr Ogg’s employment with Inghams. Later in that affidavit, Mr Ogg also claimed that Mr Waldock and Mr Rafferty had cupped his genitals.
(c) Mr Ogg was inconsistent in relation to relevant time frames. In his affidavit evidence, he provided no time frames of the conduct he alleged. However, during cross-examination his evidence was that the conduct occurred from 2009 “up to” 2015.
In relation to Mr Bhardwaj’s evidence:
(d) Inconsistencies between evidence of Mr Bhardwaj and evidence of Mr Ford concerning this aspect of Mr Ford’s claim included:
(i) Mr Ford only claimed that Mr Waldock grabbed his penis. Mr Bhardwaj claimed that Mr Rafferty, Mr Phillips and Mr Waldock had touched Mr Ford’s “groin area”.
(ii) Mr Bhardwaj claimed that the perpetrators “did it all the time”, but Mr Ford only claimed that his penis was grabbed on one occasion.
(iii) Mr Bhardwaj gave evidence of witnessing “rubbing” of the genital area for up to 15 seconds, which Mr Ford does not allege.
(e) Mr Bhardwaj’s evidence was that he witnessed touching and rubbing of Mr Ford’s genital area for up to 15 seconds on regular occasions, out in the open in the feather room. However, Mr Ogg and Mr Ly gave no evidence of prolonged genital rubbing of Mr Ford or anyone, by anyone.
In relation to Mr Ly’s evidence:
(f) Mr Ly’s evidence was inconsistent with Mr Ford’s evidence, in that:
(i) Mr Ly claimed that he had witnessed Mr Rafferty and Mr Waldock grab Mr Ford in the area of his genitals, whereas Mr Ford only claimed that Mr Waldock grabbed his penis.
(ii) Mr Ly claimed that he had witnessed this conduct on many occasions, whereas Mr Ford claimed that the conduct occurred once.
(g) Mr Ly gave evidence that Mr Mole, Mr Rafferty and Mr Waldock had engaged in grabbing staff members in the area of their genitals. No other witness gave evidence that Mr Mole engaged in this conduct. In the Third Ly Affidavit, Mr Ly did not give evidence as to the frequency or place where he witnessed Mr Mole engage in this conduct, though he did so for Mr Waldock and Mr Rafferty. However, during cross-examination, Mr Ly contended that Mr Mole did engage in the conduct (transcript p 478 ll 1-5).
(h) Mr Ly’s evidence was vague in terms of when the conduct occurred. In his affidavits, Mr Ly deposed that he could not recall the dates on which the conduct occurred, or a time period in which the conduct occurred. During cross-examination, Mr Ly stated that he had witnessed relevant conduct occur in 2014, but could not confirm whether the conduct occurred in 2015 or 2016. This time frame does not fit with his evidence that he witnessed Mr Ford being subjected to the conduct (which, if it had occurred, must have been in either 2015 or 2016 when Mr Ford worked at Inghams).
1023 To the extent that Mr Ford’s evidence was inconsistent with that of Mr Ogg, Mr Bhardwaj and Mr Ly, I have already found that I am not satisfied that such inconsistencies can be explained by alleged PTSD on the part of Mr Ford or that the Court should accept the evidence of Mr Ogg, Mr Bhardwaj and Mr Ly to the extent that it supported Mr Ford’s case.
1024 Further, I consider that the internal inconsistencies in the evidence of Mr Ogg, Mr Bhardwaj and Mr Ly are suggestive of embellishment by them of their earlier evidence in later affidavits, and of contamination of their evidence (particularly later evidence) by discussions they had with Mr Ford. In light of these inconsistencies, as well as my general findings of credit, I give the evidence of Mr Ogg, Mr Bhardwaj and Mr Ly in relation to this aspect of the applicant’s claim no weight.
1025 Third, turning to Mr Ford’s evidence, I note again the implausibility of Mr Ford continuing to socially liaise outside of working hours with Mr Waldock, if Mr Waldock had engaged in the nature and extent of the conduct which Mr Ford pleaded, and which Mr Ford claimed distressed him so. Mr Waldock and Mr Ford were clearly friends outside of working hours, and no explicable basis for Mr Waldock engaging in distressing conduct of this nature towards Mr Ford has been substantiated.
1026 Fourth, if Mr Waldock had engaged in the conduct in the feather room as alleged by Mr Ford, Mr Ogg, Mr Bhardwaj and Mr Ly, I consider it likely that other people working in the feather room would have witnessed such conduct. However:
only Mr Ly and Mr Bhardwaj gave evidence that they had witnessed Mr Rafferty and Mr Waldock grab Mr Ford in the area of his genitals;
despite the alleged proliferation of this conduct, Mr Ford gave no evidence that he had seen Mr Ogg, Mr Bhardwaj or Mr Ly touched or grabbed in the genital area by any of the respondents, or indeed by anyone;
despite the alleged proliferation of this conduct, Mr Ogg, Mr Bhardwaj and Mr Ly gave no evidence of seeing each other being touched in the genital area by any of the respondents, or indeed by anyone; and
no other witness gave evidence of seeing such conduct, by Mr Waldock or indeed by anyone.
1027 In my view there is no credible evidence of a culture of engagement in such conduct as alleged by Mr Ford, nor a tendency on the part of Mr Waldock to engage in such conduct. The fact that workers may have, among friends, slapped each other on the buttocks is not evidence of a culture of the nature alleged by the applicant.
1028 Finally, the respondents strongly denied that Mr Waldock touched Mr Ford in the fashion he alleged.
1029 On balance, I prefer the evidence of the respondents. This aspect of Mr Ford’s claim is without merit.
Agreed ISSUE 1(m): The Second and Third Respondents engaged in the conduct of performing the simulated genital sex act known as dry humping on Glenn Hannett in the sight of the Applicant in the feather room as alleged in paragraph 46 of the RFASOC.
Agreed ISSUE 1(O): THE THIRD RESPONDENT, WITH ANTHONY COLLETT, IN ABOUT JULY 2016 IN SIGHT OF THE APPLICANT ENGAGED IN THE CONDUCT OF PERFORMING A SIMULATED GENITAL SEX ACT ON VAIYAMA JUNIOR LEVAAI IN THE FEATHER ROOM AS ALLEGED IN PARAGRAPH 52 OF THE RFASOC.
Agreed ISSUE 1(p): The Second and Third Respondents in about August 2016 in sight of the Applicant engaged in the conduct of performing acts of simulated oral and anal sex on Bijo Varghese in the feather room general area as alleged in paragraph 55 of the RFASOC.
1030 These issues are referable to conduct allegedly witnessed by Mr Ford in the Inghams’ workplace, namely:
witnessing Mr Hannett being dry humped by Mr Rafferty and Mr Waldock in the feather room (Agreed Issue 1(m));
witnessing Mr Levaai being dry humped by Mr Waldock and Mr Collett in the feather room (Agreed Issue 1(o)); and
witnessing Mr Varghese being subjected to a simulated oral and anal sex act by Mr Rafferty and Mr Waldock in the feather room (Agreed Issue 1(p)).
1031 Due to the similarity in the nature of the allegations, namely simulated genital sex acts witnessed by Mr Ford, I consider it appropriate to discuss these issues together.
1032 Agreed Issue 1(m) is referable to paras 46 to 48 of the RFASOC, which provide:
Rafferty and Waldock perform simulated sex act on Glenn
46. In about April 2016, Rafferty and Waldock performed a simulated genital sex act on Glenn in the sight of Mr Ford (the “conduct”).
Particulars
(a) The conduct occurred in the feather room where Mr Ford, Rafferty and Waldock were working.
(b) Glenn entered the feather room.
(c) Rafferty and Waldock approached Glenn and commenced a conversation with him.
(d) Suddenly, when Rafferty and Waldock were positioned in the front of Glenn, they started to perform a simulated genital sex act on Glenn by each rubbing the genital region against Glenn.
(e) During the simulated sex act, Rafferty and Waldock laughed and Glenn appeared unhappy.
(f) The simulated sex act was of the kind referred to by Rafferty, Waldock and many employees at Inghams as dry humping.
47. Mr Ford:
(a) Did not solicit the conduct pleaded in paragraph 46 above;
(b) Communicated to Rafferty and Waldock that the conduct was unwelcome by looking at them with disgust.
48. The conduct pleaded at paragraph 46 above caused Mr Ford to feel:
(a) empty,
(b) hollow,
(c) disgusted and offended,
(d) humiliated,
(e) embarrassed,
(f) shocked that this could be happening to a supervisor,
(g) powerless because it was happening to a supervisor,
(h) intimidated,
(i) sad, depressed and helpless.
1033 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 46 to 48 of the RFASOC.
1034 In his amended defence, the second respondent also denied paras 46 to 48 of the RFASOC.
1035 Agreed Issue 1(o) is referable to paras 52 to 54 of the RFASOC, which provide:
Waldock and Collett perform a simulated sex act on Vaiyama Jnr Levaai
52. In about July 2016, in the feather room, in the sight of Mr Ford, Waldock and Collett performed a simulated genital sex act on Vaiyama (the “conduct”).
Particulars
(a) Mr Ford’s [sic] was working when his attention was drawn to a commotion to one side of him.
(b) Mr Ford saw Waldock and Collett with their bodies against Vaiyama, rubbing the genital area of each of them against Vaiyama.
(c) The conduct of Waldock and Collett was what they and other employees of Inghams referred to as dry humping.
(d) Waldock and Collett laughed when they were engaged in the conduct.
(e) Vaiyama left the feather room in an angry state, throwing things around as he left.
(f) Waldock then spoke with Mr Ford immediately after the conduct during which conversation he told Mr Ford that he had called Vaiyama a big black monkey with a banana in his pants.
53. Mr Ford did not solicit the conduct pleaded in paragraph 52 above.
54. The conduct of Waldock pleaded in paragraph 52 above caused Mr Ford to feel disgusted, offended, humiliated, intimidated and anxious and depressed when recalling it.
1036 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 52 to 54 of the RFASOC.
1037 Agreed Issue 1(p) is referable to paras 55 to 57 of the RFASOC, which provide:
Waldock and Rafferty perform unwelcome simulated anal and oral sex on a co-worker
55. In about August 2016, in the sight of Mr Ford, Rafferty and Waldock performed simulated oral and anal sex on Bijo (the “conduct”).
Particulars
(a) Mr Ford was in the feather room working with Rafferty and Waldock[.]
(b) Bijo came into the feather room general area and was bending over getting rubber fingers out of a box on the floor.
(c) Waldock walked up behind Bijo and pretended to have anal sex with him by rubbing his groin area against the region of Bijo’s buttocks.
(d) Rafferty went to the front of Bijo after he stood upright and pretended to have oral sex with Bijo at the same time as Waldock was engaged in the conduct at (c) above.
(e) Waldock and Rafferty laughed during the conduct.
56. Mr Ford did not solicit the conduct pleaded in paragraph 55 above.
57. The conduct pleaded in paragraph 55 above caused Mr Ford:
(a) immediate shock, offence, humiliation and intimidation;
(b) subsequently, to cry and feel ill on thinking about the conduct including remembering the helpless look on Bijo’s face during the acts performed by Rafferty and Waldock constituting the conduct;
(c) to have feelings and continue to have feelings of anxiety and depression.
1038 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 55 to 57 of the RFASOC.
1039 In his amended defence, the second respondent denied paras 55 to 57 of the RFASOC insofar as those paragraphs related to him.
Evidence of the Applicant
Mr Ford
1040 In relation to Agreed Issue 1(m), Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [242]-[247]:
In about April, when he was working late in the feather room, he saw Mr Rafferty and Mr Waldock approach Mr Hannett.
The three men “were having a conversation when suddenly Waldock and Rafferty started ‘dry humping’ Glenn.”
Mr Rafferty and Mr Waldock positioned themselves either side of Mr Hannett and started moving themselves against the side of his body to simulate the act of sexual intercourse.
They both grabbed Mr Hannett by the waist and each grabbed one of his legs with Mr Hannett squeezed between them.
Mr Hannett did not seem happy, but he did not push them away.
The incident lasted for about 5-10 seconds.
Other co-workers in the room were in a position to witness the conduct.
Mr Waldock and Mr Rafferty were open in their conduct and did not try to hide it.
He believed the incident occurred in May 2016 because he remembered that the incident occurred after Christmas, but before Mr Hannett left.
1041 During cross-examination, Mr Ford gave evidence that the incident occurred in the door of the feather room (transcript p 137 ll 23-26).
1042 In relation to Agreed Issue 1(o), Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [285]-[294]:
In about July 2016, he was working in the feather room when he saw Mr Waldock and Mr Collett dry humping Mr Levaai.
He believed it was around July 2016, as it was closer to the time he finished at Inghams, but prior to the written warning he received.
He saw them positioned to the front and side of Mr Levaai. They had their bodies against his and were rubbing their genital areas against Mr Levaai.
He recalled there were other workers in the area.
The incident lasted about 20 seconds.
Mr Flanders walked into the feather room whilst this was going on. He waited for Mr Flanders to “step in and stop it”, however Mr Flanders turned around and walked out of the feather room.
Mr Waldock and Mr Collett were laughing and had a joking manner throughout the incident.
After the dry humping had occurred, Mr Levaai pushed over a trolley and stormed out of the room, grabbing a big white bucket from the gut room and throwing it against the equipment, making a loud noise.
Mr Collett looked embarrassed and shocked at Mr Levaai’s reaction.
Mr Waldock then approached Mr Ford, and appeared unaware that Mr Ford had seen the incident between Mr Levaai, Mr Waldock and Mr Collett.
Mr Waldock then proceeded to tell him that he and Mr Collett had dry humped Mr Levaai and that he had called Mr Levaai a “big black monkey with a banana in his pants”.
Mr Waldock seemed shocked that Mr Levaai had protested.
A short time later, Mr Rafferty asked Mr Ford what had happened and Mr Ford told Mr Rafferty.
1043 In relation to Agreed Issue 1(p), Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [312]-[319]:
In about August 2016, when working in the feather room, he saw Mr Rafferty and Mr Waldock pretend to have anal sex and oral sex with Mr Varghese.
Mr Varghese entered the feather room and bent over to get some rubber plucker fingers out of a box on the floor. Mr Waldock approached Mr Varghese from behind and grabbed Mr Varghese by the hips and then pretended to have anal sex with him – he was rocking him back and forth.
Mr Rafferty then approached the front of Mr Varghese. Mr Varghese was pinned between Mr Waldock and Mr Rafferty. Mr Rafferty then proceeded to move Mr Varghese’s face towards his crotch so that it looked like he was performing oral sex on Mr Rafferty, while Mr Walodck was rocking him back and forth.
Mr Varghese looked extremely embarrassed and humiliated.
The incident last for about 20 seconds.
Mr Waldock and Mr Rafferty were laughing during the incident and appeared as if they were joking with each other as they walked away.
Mr Ford believed the incident occurred in August 2016 because it occurred towards the very end of his employment.
1044 Mr Ford, in cross-examination gave evidence that the incident occurred in the feather room after production had finished (transcript p 137 ll 28-35).
Other witnesses
1045 No evidence about these specific allegations was given by Mr Ogg, Mr Ly or Mr Bhardwaj. However, these witnesses gave evidence referable to dry humping and simulated anal and oral sex occurring at Inghams, which I have already examined in the context of Agreed Issues 1(b), 1(c) and 1(d).
Evidence of the Respondents
Mr Rafferty
1046 Mr Rafferty, in his affidavit sworn 7 July 2018, relevantly deposed as follows:
He denied that he dry humped or performed a simulated genital sex act on Mr Hannett, either together with Mr Waldock, or acting alone in the presence of Mr Ford, or at all.
He denied that he had ever performed simulated anal and/or oral sex on Mr Varghese in the sight of Mr Ford, either together with Mr Waldock, or acting alone in the presence of Mr Ford, or at all (which evidence he reiterated during cross-examination: transcript p 585 ll 10-12).
Mr Waldock
1047 Mr Waldock relevantly deposed, in his affidavit affirmed 5 July 2018, as follows:
He denied ever engaging in the alleged behaviour, and denied speaking in the way described by Mr Ford.
He denied ever engaging in conduct that could be said to simulate anal or oral sex with a co-worker.
Mr Hannett
1048 Mr Hannett, in his affidavit affirmed 12 July 2018, denied that he was ever dry humped by Mr Waldock or Mr Rafferty, together or separately, at any time during his employment at Inghams.
Mr Levaai
1049 Mr Levaai, in his affidavit affirmed 5 July 2018, denied that the incident alleged by Mr Ford in Agreed Issue 1(o) occurred in July 2016 or any other time.
Mr Collett
1050 In his affidavit affirmed 6 July 2018, Mr Collett denied that he had ever dry humped a co-worker.
1051 During cross-examination, Mr Collett gave the following relevant evidence in relation to Agreed Issue 1(o):
No. And the other incident you’re aware of is that – that has been alleged is that you were involved in dry humping – do you know a person called Ice?---Yes.
A person called Ice in the feather room and that he got upset about that and did things - - -?---No way in the world.
Yes?---If - - -
That – I - - -?--- - - - you knew who Ice Man was, you would not muck around with that gentleman.
Yes. But certainly if you got angry, he would be someone to be afraid of?---Him?
Yes?---I don’t – I've never crossed him like that.
HER HONOUR: What do you mean?---Me?
What do you mean when you say, “If you knew him, you would not do that”?---Well, he’s just quite a large gentleman.
MR REIDY: Yes?---And I wouldn't want to be in a fight or an argument with him - - -
Yes?--- - - - if that’s what you’re saying.
Is it just purely because of his size or - - -?---He's a big guy and he's a good guy. I get on with him.
Okay?---I don’t think that we would ever, sort of – I don’t think we've ever been in that situation.
When you say you don’t think you've ever been in that situation, you mean the situation I've just described?---Yes.
Yes, of dry humping?---Yes.
(Transcript p 825 ll 4-38.)
Mr Varghese
1052 Mr Varghese relevantly deposed, in his affidavit affirmed 5 July 2018, that the simulated anal sex and simulated oral sex conduct alleged by Mr Ford in Agreed Issue 1(p) had never occurred to him, and that he had never seen or heard of that type of behaviour. Mr Varghese reiterated these statements during cross-examination (transcript p 1006 ll 1-46).
Consideration
1053 Agreed Issues 1(m), 1(o) and 1(p) all related to alleged simulated genital sex acts directed to co-workers, and witnessed by Mr Ford. I have examined evidence relevant to allegations of such conduct earlier in this judgment, namely in relation to dry humping in Agreed Issue 1(b), simulated oral sex in Agreed Issue 1(c), and simulated anal sex in Agreed Issue 1(d). The earlier evidence I have discussed in relation to these other issues is relevant in this context, to the extent that I made findings concerning tendency and coincidence evidence. Further, I have already discussed some evidence relating to Agreed Issues 1(m) and 1(o) in the context of Agreed Issue 1(b).
1054 Turning now to Mr Ford’s graphic evidence on which he relied, relating to Agreed Issues 1(m), 1(o) and 1(p) concerning the conduct he allegedly witnessed occurring to Mr Hannett, Mr Levaai and Mr Varghese, I note that:
Each of the persons to whom these events allegedly occurred strongly rejected Mr Ford’s allegations, or that the events described by Mr Ford ever happened.
No credible reason has been advanced as to why Mr Hannett, Mr Levaai and Mr Varghese would not be truthful in respect of their evidence rejecting the alleged occurrence of the incidents claimed by Mr Ford.
As I have already observed, and for reasons I have already given, I do not accept that Mr Hannett would have meekly accepted the type of behaviour towards him that Mr Ford alleged had been perpetrated by Mr Rafferty and Mr Waldock.
Having seen and heard Mr Levaai in the witness box, I do not accept that Mr Levaai would have meekly accepted the type of behaviour towards him that Mr Ford alleged had been perpetrated by Mr Waldock and Mr Collett. I also accept as credible the evidence of both Mr Waldock and Mr Collett that Mr Levaai would not have tolerated the type of behaviour towards him that Mr Ford alleged had been perpetrated by Mr Waldock and Mr Collett.
Mr Varghese was credible in his rejection of the proposition that the alleged conduct had occurred towards him.
1055 I prefer the evidence of the respondents’ witnesses to the evidence of Mr Ford in respect of these claims.
1056 In my view these aspects of Mr Ford’s case, as represented by Agreed Issues 1(m), 1(o) and 1(p), are not substantiated. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act.
Agreed ISSUE 1(r): The Fifth Respondent engaged in the conduct of calling the Applicant the Applicant a “cocksucker” from about August 2015 to September, or whether the Fifth Respondent engaged in the conduct of saying to the Applicant that he “sucked the bosses cock” and that Mr Ford “takes it up the arse” in the locker room in about July or early August 2016, or whether the Fifth Respondent engaged in the conduct of saying to the [applicant] that the Applicant “likes takes [sic] it up the arse” in the locker room in about November 2015 as alleged in paragraph 82 of the RFASOC.
1057 This Agreed Issue is referable to paras 82 to 90 of the RFASOC. In particular, paras 82 to 84 provide:
Mole tells Mr Ford he is a cock sucker and that he takes it up the arse
82. From about August February 2015 and thereafter during the material time, Mole regularly said to Mr Ford, including in the presence and hearing of employees, to the effect that Mr Ford is a “cock sucker” (the “first conduct”) and Mole said on two occasions words to the effect that “you [Mr Ford] take it up the arse” (the “second conduct”).
Particulars
(a) The first conduct occurred frequently and, most weeks, it occurred daily.
(b) Mole said to Mr Ford and others present that Mr Ford had been allocated to forklift driving “because he is a cocksucker” and “He sucks the boss’s cock, that’s why he gets the good jobs” and that Mr Ford is a “cocksucker”.
(c) For the second conduct, Iin about November 2015 June 2016, in the locker room, in the presence of the leading hand Kelvin Lucht, Mole stated that Mr Ford “likes to take it up the arse”.
(d) For the first conduct and the second conduct, Iin about July or early August 2016, in the locker room, in the presence of leading hand Jason Flanders, Mole called Mr Ford a “cocksucker” and told him said to Mr Ford words to the effect that Mr Ford “sucked the bosses cock” and that Mr Ford “takes it up the arse”.
(e) The words were said in a nasty tone of voice.
(f) The words were often spoken in front of co-workers.
83. The statements by Mole pleaded in paragraph 82 above were unsolicited by the Applicant Mr Ford.
84. The conduct of the Fifth Respondent Mole pleaded in paragraph 82 above caused the Applicant Mr Ford to feel sick in the stomach, shocked, offended, humiliated, intimidated, demeaned, tense, anxious, embarrassed, belittled, depressed and anxious, and contributed to sleeplessness and Mr Ford becoming more introverted.
1058 In the amended defence of the first and third to fifth respondents, the fifth respondent denied paras 82 to 84 of the RFASOC.
Evidence of the applicant
Mr Ford
1059 Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [67], [102], [110]-[115], [178]-[187], [279]-[281] and [303]-[304]:
He had heard Mr Mole make racist remarks in front of Mr Flanders, and Mr Flanders did not say anything.
He did not get along with Mr Mole from the start of his employment.
From early in Mr Ford’s employment, Mr Mole frequently referred to Mr Ford as a “cocksucker”. For example, when Mr Ford was confirming with another employee that he was working on the forklift the following week, Mr Mole interjected into the conversation, “because he is a cocksucker”.
He understood the comment “cocksucker” to refer to the fact that he was rostered on the forklift because he had “sucked up” to his supervisors; that he was sycophantic to the bosses and would do whatever they wanted; and, that he performed oral sex to get the forklift work.
Mr Mole also called Mr Ford a “cocksucker” when the two were in conversations with other employees in the smoking area. He also said words to the effect of: “He sucks the boss’s cock. That’s why he gets the good jobs”. He understood the statements as depicting him to other workers in a sexualised way.
The comments were usually made in front of a group of people, rather than in one-on-one conversations with Mr Mole.
The statements were sexualised statements, suggesting that he was engaging in sex acts with bosses in order to get good jobs.
Mr Ford made a complaint about Mr Mole’s language to Mr Hannett in June 2015. Mr Lucht was also in the office at the time. Mr Mole was called straight to the office. Mr Mole was disciplined, receiving a written warning.
Mr Mole became more hostile to Mr Ford after Mr Ford had made the complaint.
On two occasions, Mr Mole said to Mr Ford that Mr Ford “takes it up the arse”. Mr Mole did so on one occasion in about November 2015, in the locker room, in front of Mr Lucht.
One evening in July or early August 2016, Mr Mole said words to the effect that Mr Ford “sucks the boss’s cock” and Mr Ford “takes it up the arse” in front of Mr Flanders in the locker room. There were about five other workers around at the time.
In about early August 2016, Mr Ford was sitting in the smoking area with Mr Waldock and Mr Mole walked past and called Mr Ford a “cocksucker” and made other derogatory comments towards him.
Mr Mole swore at Mr Ford daily.
There were two further occasions in August 2016 where Mr Mole was abusive towards Mr Ford. On one occasion, Mr Mole yelled at him words to the effect: “What the fuck are you doing in here. Fuck off back to the feather room”. This occurred before he went on light duties.
On the second occasion, he was in the locker room when Mr Mole stormed in and said words to the effect: “If I lose my job here, I will murder someone because I have nothing else to lose”. He found this behaviour intimidating and threatening.
He found the statements disgusting, repulsive, humiliating, nasty, demeaning, intimidating and highly offensive. The statements were not made in a joking manner. Mr Mole was accusing him of prostitution in front of other workers.
1060 Mr Ford was cross-examined as to his understanding of the meaning of the word “cocksucker” relevantly as follows:
Do you agree, Mr Ford, that there is a common usage of the word “cocksucker” which does not have sexual connotation?---Outside of the workplace, yes.
All right. What do you understand outside of a workplace the expression “cocksucker” to mean?---Someone who performs oral sex on someone.
So that’s what you think cocksucker means outside of a workplace?---Yes.
And what does it mean inside of a workplace?---That you suck up to the bosses.
That’s it, isn’t it; that you suck up to them?---I think so, yes.
It’s not an assertion when someone is called a cocksucker, in your experience, that it actually means that they perform oral sex on a boss to get ahead in the workplace?---I’m not sure.
Okay. Well, let me just breakdown what you’ve just told the court. You said when I asked you if there was a common understanding of the word “cocksucker” or perhaps the best evidence you can give is your understanding?---Yes.
And you’ve said outside work it’s someone who gives oral sex to somebody, presumably a man and in the workplace it was someone who sucks up to somebody?---Yes, a boss.
Okay. And another expression might be “bootlicker”?---I’m not sure.
All right. Do you know that expression?---No.
Okay. So when we’re talking about sucking up, just so that I’m sure what you mean to be your understanding of that expression, the expression “cocksucker” to you in the workplace means an allegation that you’re someone who ingratiates yourself with the bosses?---Yes.
Tries to openly do the right thing; show off a bit to show that you’re doing the right thing; would that be a common understanding on your part?---Yes.
Okay. And that’s what you understood George Mole to mean when he called you a cocksucker?---I think so, yes.
Because he said it to you in the context of you getting some pretty good work early on?---Yes.
And really getting into that feather room, forklift driving, which were better duties than hanging?---Through hard work, yes.
Okay. So you didn’t understand George Mole to be saying that you had actually performed oral sex on someone to get forklift duties; that’s consistent with what you just told the court, Mr Ford?---Yes.
(Transcript pp 147-148.)
1061 Later in cross-examination, Mr Ford gave the following evidence when again questioned as to the meaning of the phrases and words Mr Mole had said to him:
Now you will recall that yesterday we were talking about the expression cock sucker?---Yes.
And you agreed that in the workplace, your understanding of the word cock sucker was meaning someone who sucked up to bosses?---Yes.
And you would agree, wouldn’t you, Mr Ford, that the expression taking it up the arse in a work context means the same thing, doesn’t it?---Yes.
Your understand of someone making that allegation in a workplace is not that they’re suggesting that you’ve actually had anal sex with one of your supervisors?---I’m unsure.
Well, what’s your understanding?---That maybe they had.
All right. So yesterday you agreed that cock sucker was an expression for someone sucking up. Do you agree that someone taking it up the arse is a similar expression?
It conveys a similar meaning?---Yes – yes.
Okay. And do you agree that that similar meaning is sucking up to somebody?---Yes.
And do you agree that it, in that sense, is not an allegation that you’re actually having anal sex with somebody?---Yes.
Thank you. You understood these comments to be about you sucking up to senior members of staff?---I’m unsure.
HER HONOUR: Can I ask a question? The distinction between someone being described as a cock sucker and taking it up the arse and you being described as such?---Yes.
Do you think they are the same thing in the sense that there’s no difference as to what the meaning is, is there? Or you would – you think there is?---No, I think they’re the same, your Honour.
All right. So you – somebody saying that about someone else and someone saying that about you in the workplace means the same thing?---Yes, your Honour.
Thank you.
MS REECE: So you didn’t think that George Mole was accusing you of engaging in sex acts on the bosses?---I’m unsure.
Well, you just said that you agreed – well, sorry, you just agreed with me when I said – sorry, your Honour, I will just withdraw that and make sure I ask the question fairly. Just remembering exactly what the witness said.
I suggested to you, Mr Ford, or, in fact, I suggest to you now that when you were accused – when someone accused you – when George Mole accused you of taking it up the arse, your understanding of that was that he meant you were sucking up to the bosses?---I don’t know what George Mole’s understanding of his comments were.
No, I’m not asking you about his understanding. I’m asking about what you thought he meant. How did you take it?---Yes, that I was sucking up to the bosses, I think.
You didn’t think that what he was saying to you was that you were actually having anal sex with the bosses?---No.
Okay. You didn’t think that he was accusing you of prostitution?---No.
(Transcript pp 222-223.)
Mr Bhardwaj
1062 In the First Bhardwaj Affidavit, Mr Bhardwaj relevantly deposed:
He received bullying, sexual harassment and racism from his supervisors, and also specifically from Mr Mole.
He had made a complaint about Mr Mole’s abusive language to Mr Hannett or Mr Lucht.
Mr Mole frequently used abusive language towards him and other employees, particularly new employees.
Mr Mole had called him a “shit cunt”, told him to “fuck off” and to “fuck [his] mother”.
Mr Mole called Mr Ford a “cocksucker” on at least one occasion.
Mr Mole made similar comments to other workers.
Mr Mole told other employees to “go back to your country”.
Mr Mole frequently made racist remarks about people and their ethnic background.
Mr Mole called him a “stupid Indian”.
Mr Flanders was present when Mr Mole used abusive language towards Mr Bhardwaj and other employees, and Mr Flanders would laugh when Mr Mole did so.
1063 In the Second Bhardwaj Affidavit, Mr Bhardwaj also deposed that he swore in response to racist comments made to him, and gave the following example:
there was an occasion where Mr Mole told him to “go back to his country”;
he responded that if Mr Mole had a problem with him being an Australian resident he could complain to the government;
Mr Mole replied by telling him to go back to India; and
he then told Mr Mole to “fuck off”.
1064 By reference to evidence in the First Bhardwaj Affidavit, Mr Bhardwaj further deposed in the Third Bhardwaj Affidavit:
He was not informed that anything was done about the complaint he made to Mr Hannett or Mr Lucht. He did not know if Mr Mole was disciplined.
Mr Mole made other racist comments towards him, for example, he told Mr Bhardwaj that the cologne Mr Bhardwaj wore at work “stinks of curry”.
Mr Mole somehow found out about Mr Bhardwaj’s complaint. Mr Bhardwaj had told Mr Levaai that he had made a complaint about Mr Mole’s behaviour, but he did not know how Mr Mole found out he complained.
A Korean process worker walked off the line in the middle of a shift and later told him that he had complained to Mr Hannett about Mr Mole’s behaviour. Following this, he heard Mr Mole call this worker a “donkey” and tell this worker that he could not hang properly because he was a “shit cunt”.
Mr Mole made racist comments to him and other workers almost every single shift.
Mr Mole said things such as “shit cunt”, “fuck off” and “fuck your mother” to the Korean workers, Mr Rahiwi and workers rostered in the halal killing room.
He heard Mr Mole call Mr Ford a “cocksucker” twice. He did not recall the dates.
On one occasion, at the start of his and Mr Mole’s shift in the hanging room, Mr Mole said to Mr Ford (when all three were together in the hanging room) that Mr Ford had an easy job working in the feather room because “he’s a good cocksucker”.
On another occasion, Mr Mole called Mr Ford a “cocksucker” when Mr Ford was walking in the corridor between the hanging room and the feather room. At the time, he, Mr Mole and other workers had been standing outside having a five minute break.
Mr Mole has told Korean workers and a worker from Somalia to “go back to their country”.
Mr Mole called one of the Korean workers a “donkey” and he heard Mr Mole say that that worker looked like a donkey.
1065 In relation to the complaint he made about Mr Mole’s behaviour, Mr Bhardwaj gave the following evidence during cross-examination:
You made a written complaint?---Yes, about George Mole, like, about his behaviour.
Well, what was that behaviour?---All that, like, using abusive languages, upset me about my ethnic cultures. And I told about Michael Rafferty and Brenden too while I was working in the feather room. They come and grab me from – from the back, approached me.
So just hold on a second. You say you made a written complaint in relation to George Mole and his abusive language towards you?---Yes, for his abusive language. Yes.
Okay. Who did you give that complaint to?---Mr Glenn Hannett.
(Transcript p 181 ll 30-41.)
Mr Ly
1066 In the First Ly Affidavit, Mr Ly relevantly deposed that he had seen and heard Mr Mole, Mr Rafferty and Mr Waldock, among other things, use sexual and abusive language which often referred to anal sex.
1067 In the Third Ly Affidavit, Mr Ly deposed that Mr Mole, Mr Rafferty and Mr Waldock engaged in using sexual and abusive language on a number of occasions (though he could not recall how often) in the feather room and the hanging room, but that he no longer had any specific recollection of such conduct.
1068 Mr Ly was unable to specify a time period for this alleged conduct during cross-examination (transcript p 477).
Mr Ogg
1069 In the Fourth Ogg Affidavit, Mr Ogg referred to the statement he made on 29 November 2016, during the workplace investigation into Mr Ford’s complaint of sexual harassment, in which he stated he had never witnessed staff using sexual and abusive language towards Mr Ford. Mr Ogg deposed in his affidavit that this statement was untrue, and he did not know why he signed it.
1070 In the same affidavit, Mr Ogg deposed that “[h]aving been asked a series of questions and having my recall pressed about the conduct described”, he recalled having witnessed Mr Mole using sexual or abusive language to Mr Ford. In particular, he had heard Mr Mole call Mr Ford a “shit cunt” and a “cocksucker”, noting that Mr Mole used the term “cocksucker” nearly every day. He deposed that he heard Mr Mole call Mr Ford a cocksucker at least three times, but could not recall the circumstances.
1071 Mr Ogg was not cross-examined in relation to his evidence concerning Mr Mole.
Evidence of the respondents
Mr Mole
1072 In his affidavit affirmed 5 July 2018, Mr Mole relevantly deposed:
There had always been “banter” at work between employees that he would describe as joking and “mucking around”.
The interactions never took on a rude, sexist, homophobic or otherwise disrespectful tone.
He thought he and Mr Ford got on well because they would catch up outside in the smoking area.
In about June 2015, when he and Mr Ford were smoking, he told Mr Ford that he thought some people at work “sucked a lot of cock” to get their preferred jobs. He did not say this about Mr Ford or anybody in particular. It was not meant to be taken seriously. Mr Ford laughed in response.
Mr Ford and Mr Mole did not normally speak like this. Mr Mole’s comment was the only time he would have used that language in the workplace.
Mr Mole was called into the Red Area office by Mr Hannett the following day and told of a complaint made against him, which he knew must be from Mr Ford because he was the only person he had spoken to in a way that could be considered offensive. Mr Hannett told him to write a statement, and Mr Mole did so, admitting that he had made the comment.
Mr Mole was given a warning for 12 months as a result of the complaint, and lost his forklift driving privileges. He took it “on the chin” because he knew “he had stuffed up”.
He recalled one previous verbal warning about arguing about work processes with colleagues, which did not concern Mr Ford.
It is common for employees to swear in the workplace, but he does not swear in a manner directed at other people.
He tried to apologise to Mr Ford about making the comment, but Mr Ford would not talk to him. Following this, Mr Mole made a conscious effort to stay away from Mr Ford.
In May or June 2016, he and Mr Ford became friendlier as Mr Mole had recently had a marriage breakdown and he and Mr Ford would discuss Mr Mole’s planned tattoos.
He had never called Mr Ford a “cocksucker” or said words to the effect that he takes it “up the arse” or “sucks the boss’s cock”, much less on a weekly basis.
He denied that he ever made comments that could be considered racist about or toward any fellow employee.
He denied that he ever used rude or racist language to anybody in the workplace.
He would never say something like “I will murder someone”, even in a joking way.
1073 During cross-examination, Mr Mole denied that he had:
ever called a Korean process worker a donkey;
used the expression “shit cunt”; and
ever made a statement to a co-worker that their cologne “stank like curry”.
(Transcript p 649.)
1074 In relation to the meaning of the words Mr Mole allegedly used, the following exchange during cross-examination is relevant:
Mr Mole, you know, in this case, the expressions that have been attributed to you?---Yes.
So when I ask you this, first of all, the expression, “suck a lot of cock to get preferred jobs”, you agree that’s similar in this context to the expression, “suck the boss’s cock”?---Yes.
And similar to saying someone is a cocksucker?---Yes.
And what does saying that mean to you?---Basically, it means you’re a suck-up, trying to get good jobs.
A suck hole?---A suck-up.
Suck-up?---Yes.
Sorry. Sorry. I just found it difficult to pick that up. Now, you know another expression – and they’re expressions with which you’re familiar?---Yes.
The ones I just read to you, “cocksucker”, you’re familiar with that?---Yes.
You’ve used that expression?---I’ve used it before.
Yes. “Suck the boss’s cock”, you’ve used that before?---I don’t think I’ve said that before.
And “suck a lot of cock to get preferred jobs”?---Yes.
Now, the expression, “take it up the arse”, you’ve heard that before?---Yes.
And you’ve used that before?---No.
Never ever in your life?---No.
All right. Well, when you’ve heard it – and not inside work, you’ve never used that expression?---Maybe heard it before. It’s just a joke.
Okay. And what does “take it up the arse” mean to you?---It’s just like you’re trying to get an easy job and you just take – you’re just – it was just a joke.
All right. So when you say it’s just a joke, you’re saying these expressions refer to people who are trying to get in good with the boss?---Yes.
And they are, as a result of that, getting favours and special treatment?---Yes.
And developing a special relationship with the boss?---Yes.
Now, in practical terms at Inghams’, who is the boss?---The supervisor.
The supervisor. So if we’re talking in timeframe of Mr Ford’s employment and particularly going to June of 2015, Mr Hannett would have been the boss?---Glenn.
Glenn? Yes?---Yes.
…
Now, I will have to do it in case of two of them, though. In the all-male environment in 2015, 2016, the literal meaning of saying that someone is sucking someone’s cock is a man is performing oral sex on another man. That’s the literal meaning, isn’t it?---That’s the literal meaning, but not what we mean.
Right. And the literal meaning, in that all-male environment, of “taking it up the arse” is male anal sex?---Yes, if you want to put it that way. But it was not that way we were saying it.
All right. Now, you’ve nominated an alternative expression. I think you said, was it, “sucking up to the bosses”?---Yes.
That’s an expression you could easily use when you are describing your concerns about people getting preferred jobs?---Yes.
And are you familiar with the expression “crawler”?---Yes.
And that’s the kind of thing that you’re describing when you’re using those expressions, someone is crawling to the boss to get preferred jobs?---Yes.
And that’s an expression you’re familiar with and could have easily used?---Yes. But I didn’t.
And I’m suggesting to you that to say something like what you admit saying, “sucking the boss’s cock”, is offensive to the person hearing it?---Well, it could be
- - -
(Transcript pp 637-639.)
1075 I also note the following relevant exchange:
MR REIDY: Do you want to have a look at it? It’s the last sentence. And you say:
People are friendly are at Inghams’ and there is a line that is obvious that people should not go past in how they speak or what they speak about.
Do you see that?---Yes.
So on this line, is saying to someone that they suck the boss’s cock over the line or is it acceptable?---It’s acceptable.
Acceptable?---Like, it’s – if someone gets offended by it, they’re going to go and tell, aren’t they? And then you get pulled up on it. And I got pulled up on it, didn’t I? So obviously I went over the line and I got – I got in trouble for it and I never said it after that.
All right?---So there’s the line. There’s your answer right there. In that thing right there.
(Transcript pp 640-641.)
1076 In relation to the frequency with which Mr Mole used such language, Mr Mole gave evidence during cross-examination that:
Prior to June 2015, he had used the expression “cocksucker”, most likely around Mr Ford.
Mr Mole later gave evidence that, prior to June 2015, he had used the expression “cocksucker” before, but not in the workplace.
Workers at Inghams did not normally use such language.
He understood the term “tradie mouth” to refer to people who swear “a bit” or language that was peppered with swearing.
The expression “cocksucker” was swearing.
Mr Mole swore in the workplace, but not in a manner directed at other people.
He might use the expression “cocksucker”, but not directed at the person he would be talking about.
After he received the warning for his conduct towards Mr Ford, he did not say the expression again.
(Transcript p 644-647.)
Mr Rafferty
1077 Mr Rafferty, in his affidavit sworn 7 July 2018, gave evidence relevantly as follows:
He did not use sexual or abusive language in the workplace, including towards Mr Ford.
He had encouraged Mr Ford to speak up to Inghams’ management about how he was being treated by Mr Mole, as Mr Rafferty had seen Mr Mole yell at Mr Ford. He did not remember when his conversation with Mr Ford occurred.
He had had many conversations with Mr Ford about things that had happened to Mr Rafferty in the workplace, being mainly about conduct he considered to be bullying or verbal abuse.
1078 Mr Rafferty was not cross-examined in relation to his evidence concerning Mr Mole’s conduct.
Mr Waldock
1079 In his affidavit affirmed 5 July 2018, Mr Waldock deposed that Mr Ford had informed Mr Waldock that he would make a complaint about Mr Mole.
1080 Mr Waldock was not cross-examined in relation to his evidence concerning Mr Mole.
Mr Phillips
1081 In his affidavit affirmed 6 July 2018, Mr Phillips deposed that he had heard process workers make rude jokes which involved swearing or being rude about others, but the jokes were never threatening or abusive, and were made between people who knew each other well. Mr Phillips deposed that he had not otherwise seen or heard of any behaviour that could be considered sexual harassment, discrimination or bullying at Inghams.
Mr Collett
1082 In his affidavit affirmed 6 July 2018, Mr Collett relevantly deposed as follows:
He had heard some remarks from colleagues that could be described as offensive behaviour to one another in the work place.
For example, an interaction between two process workers calling each other “cocksuckers”, or saying “pick up your game” (in relation to working properly), or swearing.
He had not heard threatening or abusive or personal remarks made.
1083 Mr Collett also gave relevant oral evidence during cross-examination. In particular, I note:
He had heard a number of workers use the expression “cocksucker”.
He had heard Mr Mole use the expression “cocksucker” in 2017 and would have heard him say it 2016.
Mr Mole was prone to saying things such as “someone takes it up the arse” and Mr Collett would have heard Mr Mole use the expression throughout 2016.
Mr Mole was probably someone who would say “someone sucks the boss’s cock”.
Mr Mole spoke in a way that Mr Collett described as “locker-room banter”.
(Transcript pp 814-815.)
1084 In relation to his understanding of the meaning of “cocksucker” and similar such phrases, Mr Collett gave the following evidence in relation to questions I put to him:
HER HONOUR: So just let me understand your – my understanding, from what you’re saying, Mr Collett, is that – and perhaps I’m wrong – but that George may say that if someone is not pulling their weight. Is that what you are saying?---Well, in general.
Right?---Yes.
So maybe – let’s just talk generally about workers. Is that your understanding of when someone might say that, if another worker is not pulling their weight; is that right?---Or probably not that way. Probably more in the context if they got a good gig.
Right?---Or they got privileges ahead of what we thought they would, or they jumped the queue in the workers. So if I’ve been there for a year trying to get into a position and somebody comes along and manages somehow – their ability, their relationship with the boss – and they manage to get into that role, that’s probably more in the context that they would be called that.
So if I can put it this way: something that they may not deserve, given that other people may have a better right to something in the workplace?---That could have bene [sic] a time that they would have been called that, yes.
(Transcript pp 815-816.)
Mr Muhic
1085 In his affidavit affirmed 5 July 2018, Mr Muhic deposed that, in the past, he had seen people at work treat others with “disrespect” in the Red Area. By “disrespect”, he meant swearing, putting people down, and making racist comments to or about other workers. He stated that the people he had seen engage in that behaviour, namely Mr Bhardwaj and Mr Hill, had left Inghams.
1086 I also note the following relevant evidence of Mr Muhic during cross-examination:
He could not remember (“off the top of [his] head”) what type of racist comments he had heard being made at Inghams.
He would not report a racist comment if he heard one, unless the person involved reported it, or potentially if someone was too scared to report the incident.
He had only made a complaint when someone had said a racist thing to him. Specifically, Mr Bhardwaj had called him a “white dog” and Mr Muhic took offence.
Mr Mole “has got a bit of a short temper, but apart from that he’s all right”.
He had heard Mr Mole use the expression “cocksucker” a few times, although he could not remember the last time he heard Mr Mole use the expression.
Mr Mole “has a short fuse, so you just – you can just hear him blurting it out. I don’t know to who”.
He had heard Mr Mole use the expression when Mr Mole was in the hanging room and the locker room.
(Transcript pp 799-801.)
Mr Dhanoa
1087 In his affidavit affirmed 5 July 2018, Mr Dhanoa stated that he had never seen or heard colleagues bully, sexually harass or be disrespectful to other workers. He noted that workers would joke and say things such as “you’re hanging so slowly, you’re going to get left behind”, but the comments were never a personal joke and it was never of a sexual nature.
1088 Mr Dhanoa was not cross-examined in relation to Mr Mole or the prevalence of language of a sexual or abusive nature at Inghams.
Mr Levaai
1089 In his affidavit affirmed 5 July 2018, Mr Levaai gave evidence that he had seen and engaged in conversations with other employees that he was friendly with that included swearing and joking, but he had never had conversations that were sexual or abusive.
1090 Mr Levaai was not cross-examined in relation to Mr Mole or the prevalence of language of a sexual or abusive nature at Inghams.
Mr Rahiwi
1091 During cross-examination, Mr Rahiwi gave evidence that he had never heard Mr Mole use the expression “cocksucker” (transcript p 499 ll 12-32).
Mr Flanders
1092 In his affidavit sworn 6 June 2018, Mr Flanders relevantly deposed as follows:
He had witnessed a lot of swearing in the workplace.
Many of the process workers had a “tradie mouth”.
He had heard a lot of verbal interactions between process workers over the years, and some of those interactions had been abusive (in the sense that people would swear in a way that antagonised another) and some were harmless (where two work mates understood how the other would receive the language).
He had never laughed at comments and it would not have been appropriate to do so when he was leading hand.
He had observed process workers using poor language, including racist language.
If process workers were ever too heated in their interactions, he would move them around so they were not on the line together.
He would accept from his knowledge of the language he had heard during his employment that Mr Mole could have called Mr Ford a “cocksucker”.
He did not believe Mr Mole would have said Mr Ford “sucked the boss’s cock” or that he liked to “take it up the arse”.
He was friends with Mr Mole, and they would go on fishing trips together.
He was of the view that the warning Mr Mole received in relation to Mr Ford’s complaint was deserved.
1093 During cross-examination, Mr Flanders gave the following evidence:
By the term “tradie mouth” he meant the use of very bad language, such as “F bombs” and “C bombs”.
He had heard the expression “cocksucker” used at Inghams.
Mr Mole used the expression “cocksucker” quite a bit.
He had not heard Mr Mole use the expression “take it up the arse” or talk about things like “sucking the boss’s cock”.
When he heard an expression such as “cocksucker” used by an employee he would first assess whether it was “banter” between people on a friendly level. He would judge this by whether the workers used the same tone and language to each other.
If he perceived that the interaction was becoming heated, he would separate them on the hanging line, but would take no other action unless the worker wanted to.
He would adopt the same approach if the interaction between workers involved racist language.
(Transcript pp 1055-1058.)
1094 In relation to Mr Mole’s use of language towards Mr Bhardwaj, Mr Flanders gave the following evidence during cross-examination:
Now, you’ve already given evidence about the process, but I want to ask you about this, because Mr Bhardwaj, in his earlier paras where he complains about George - - -?---Yes.
Look at paragraph 31 – says:
He called him a shit cunt.
?---Yes.
So you don’t make any point of disagreeing with that in your affidavit?---No.
That George told him to fuck off?---Yes.
You don’t disagree with that in your affidavit?---No.
And that George said something to the effect to Mr Bhardwaj that he could fuck his mother. See that?---Yes.
Fuck my mother, I assume is what that means?---Yes.
And you didn’t disagree with that?---No.
Now, he also says, in paragraph 32, in the second sentence, that George called him a stupid Indian?---Mmm.
Do you see that?---Yes.
And you didn’t disagree with that?---No.
And you know that Mr Bhardwaj is a man originally from India?---Yes.
(Transcript p 1060 ll 13-43.)
1095 I also note the following relevant evidence that Mr Flanders gave later during cross-examination:
Usually, if a worker felt threatened, they would come and see him, or go and see another team leader.
You could tell by the facial expression of a worker whether they were happy during an interaction.
If a person was being aggressive, he would tell them to “cut it out” and ask the other person if they would like to be moved.
He did not understand Inghams’ policy to be that the leading hand was to report all such matters of racist language to a supervisor.
He did understand Inghams’ policy to be that the leading hand was to report all such matters of abusive language immediately to a supervisor.
(Transcript pp 1063-1064.)
Mr Lucht
1096 During cross-examination, Mr Lucht gave the following evidence:
He signed a statement during the workplace investigation that stated he had not seen staff using sexual and abusive language.
He had seen arguing at Inghams, but he did not think arguing was abusive.
He did not recall being present when Mr Mole allegedly said to Mr Ford words to the effect that Mr Ford “takes it up the arse”.
(Transcript p 1027-1028.)
1097 In relation to whether Mr Lucht had heard Mr Mole use abusive language, Mr Lucht gave the following evidence during cross-examination:
The expressions “cocksucker” and “sucks the boss’s cock” are abusive language.
He had never heard Mr Mole, or any other employee, use those expressions.
(Transcript p 1029 ll 12-27.)
1098 However, I also note that Mr Lucht’s evidence in his affidavit affirmed 10 July 2018 was that he had very few interactions with Mr Mole, and those interactions were on an “as needed basis” because he found Mr Mole to be boisterous and loud.
Mr Hannett
1099 In his affidavit affirmed 12 July 2018, Mr Hannett deposed that, in his time at Inghams, he had never observed any behaviour that could be considered bullying, but he had observed normal “shop floor” discussions. “Shop floor” discussion referred to the fact that process workers were happy to inform co-workers when they were not happy with their work, for example, telling others to hurry up.
1100 Mr Hannett also gave evidence during cross-examination that he had not heard Mr Mole use words and phrases such as “cocksucker”, “shit cunt” or tell someone to go back to their country (transcript p 916 11 15-25).
1101 During cross-examination, Mr Hannett could recollect very little in relation to the “shop floor” discussions he had witnessed, or the disciplining of Mr Mole for his use of bad language. He gave evidence that:
He could not recall the content of the “shop floor” discussions to which he deposed in his affidavit, but they would probably be in the nature of “banter”.
He could not say whether that “banter” would include expressions such as “cocksucker”.
He could not recall Mr Mole having used the expression, or disciplining Mr Mole for using that expression, but it would have been something he would remember.
(Transcript pp 907-908.)
Other witnesses
1102 Mr Chan, Mr Johnson, Mr Okoro and Ms Horne all made statements in late November 2016 or early December 2016, during the workplace investigation, that they had never seen, heard, or been the perpetrator of using sexual language.
Consideration
Was the conduct alleged by Mr Ford substantiated?
1103 The applicant relevantly submitted, in summary:
Mr Mole’s evidence that he had never used the expression “take it up the arse”, but had maybe heard it before as a joke, was not plausible. Mr Collett had heard Mr Mole use the expression in 2016.
Mr Flanders and other witnesses spoke of the “tradie mouth” environment of the workplace in which it would be impossible not to have heard the expression used.
Mr Mole’s evidence should be rejected.
Mr Lucht gave highly improbable evidence that he never heard any abusive language at any time in the factory. His evidence should be disregarded.
On the balance of probabilities, the words alleged used by Mr Mole were said.
Mr Mole used the expression “cocksucker” “quite a bit” according to Mr Flanders.
Mr Flanders avoided answering the evidence of Mr Ford. He did not deny the incident occurred, merely responded to the allegation that he would smile at such conduct.
Mr Bhardwaj’s evidence corroborated Mr Ford’s evidence, as Mr Bhardwaj recalled two occasions when he heard Mr Mole call Mr Ford a name to the effect of “cocksucker”.
Mr Ly gave evidence that he heard Mr Mole use the expressions “he likes it up the arse” and “I know you like it up the arse” to Mr Ford.
Mr Mole harboured an unsavoury combination of a hyper-aggressive personality (clearly and unashamedly on display during his evidence) and a deep resentment towards any person he perceived as having received favoured treatment.
Mr Mole was a dominant overbearing and powerful figure in the workplace. When combined with Mr Mole’s version of the right to free speech, he could say anything he liked and his audience had to accept it.
There was a high degree of probability that Mr Mole used the language in the locker room in front of the leading hands as alleged by Mr Ford.
1104 The respondents submitted that the Court may find that in the hanging room, process workers may have used intemperate language to vent, express frustration at other’s inefficiencies, or use language between each other that would not be acceptable outside of those workers’ known (and often long-standing) working relationships.
1105 Notwithstanding Mr Mole’s denial of having used language of this type to Mr Ford, on consideration of the evidence before the Court as a whole I am satisfied that, during Mr Ford’s employment at Inghams:
Mr Mole regularly used intemperate language towards co-workers, including Mr Ford, during the course of work;
Mr Mole used such language to Mr Ford irrespective of who else was present, including in front of leading hands at Inghams;
on at least two occasions, Mr Mole called Mr Ford a “cock sucker” as Mr Ford claimed; and
on two occasions, Mr Mole said to Mr Ford that Mr Ford “[took] it up the arse” and/or that Mr Ford “sucked the boss’s cock”.
1106 In so finding, I make the following observations:
I give no weight to evidence of Mr Ogg and Mr Ly in relation to Mr Ford’s claims, in circumstances where:
(a) Mr Ogg’s evidence in the Fourth Ogg Affidavit, that he “now recalled” Mr Mole using the word “cocksucker” almost daily, was given after Mr Ogg was apparently asked a series of questions by Mr Ford’s lawyers, had his recall pressed, and followed a conversation with Mr Ford about Mr Ford’s claims.
(b) Mr Ly’s evidence was that Mr Mole, Mr Rafferty and Mr Waldock engaged in using sexual and abusive language which often referred to anal sex. No other witness gave evidence that Mr Rafferty and Mr Waldock engaged in using sexual and abusive language (with the exception of Mr Ford deposing that Mr Rafferty referred to “other workers with dark coloured skin as ‘black cunts’”: affidavit of Mr Ford sworn 6 August 2018). Nor did any witness, including Mr Ford, give evidence that Mr Rafferty or Mr Waldock had “tradie mouths” or used bad language regularly.
• I consider the evidence of Mr Bhardwaj in respect of Mr Mole must be approached with some caution in light of my overall views concerning Mr Bhardwaj’s credit and, in particular, in light of Mr Bhardwaj’s clear dislike of Mr Mole. Nonetheless, Mr Bhardwaj’s evidence as to the language he heard Mr Mole use was consistent with that of a number of other witnesses. I consider that Mr Bhardwaj may have embellished aspects of his evidence in respect of Mr Mole (for example, by deposing that Mr Flanders laughed in relation to Mr Mole’s use of language). However, in general, I consider that the evidence of Mr Bhardwaj in relation to language used by Mr Mole was credible, including Mr Bhardwaj’s evidence of language he said Mr Mole had used towards Mr Ford (and other workers).
• Witnesses for the respondents, including Mr Rafferty, Mr Collett and Mr Muhic, gave evidence that, in the workplace, they had heard Mr Mole use the expressions alleged by Mr Ford.
• Mr Rafferty specifically gave evidence that he had seen Mr Mole yell at Mr Ford. As I have earlier observed, I consider Mr Rafferty to be a witness of credit.
• Mr Flanders gave evidence that many process workers had a “tradie mouth”, and in my view it is likely that this description extended to Mr Mole.
• The evidence before the Court indicated that Mr Ford was considered by Inghams’ management to be a good worker, and that Mr Ford had been allocated coveted forklift driving duties, such as to potentially inspire envy or resentment in co-workers such as Mr Mole.
• Mr Ford’s evidence concerning the language used by Mr Mole towards him was supported by the complaint Mr Ford made earlier to Inghams’ management concerning Mr Mole.
• Finally, Mr Mole’s evidence was ultimately consistent with this aspect of Mr Ford’s claims. I particularly note Mr Mole’s response to a question put by Mr Reidy for the applicant during cross examination that: “And the literal meaning, in that all-male environment, of “taking it up the arse” is male anal sex?” Mr Mole’s response to this was: “Yes, if you want to put it that way. But it was not that way we were saying it.” Plainly, Mr Mole did say those words.
1107 The next question is whether this conduct on the part of Mr Mole constituted sexual harassment within the meaning of s 28A(1) of the SD Act.
Was the substantiated conduct sexual harassment within the meaning of s 28A of the SD Act?
1108 Paragraphs 85 to 90 of the RFASOC are relevant to this question. Those paragraphs provide:
Sexual harassment by Mole
85. By engaging in the conduct pleaded at paragraph 82 above (“Mole’s conduct”), the Fifth Respondent Mole engaged in unwelcome conduct of a sexual nature in relation to the Applicant Mr Ford.
Particulars
The conduct included explicit and express words of a sexual nature; involved assertions about Mr Ford’s sexual orientation; involved assertions about Mr Ford’s private sexual activity; concerned accusing Mr Ford of giving sexual favours to his line managers in return for favourable treatment at work in the nature of prostituting himself.
86. Mole’s conduct occurred in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the Applicant Mr Ford would be offended, humiliated or intimidated.
Particulars
The circumstances included that:
(a) The words used by Mole were highly offensive, disgusting and disgraceful[.]
(b) The words depicted private sexual acts.
(c) The words depicted lewd sexual acts.
(d) The words portrayed Mr Ford in a demeaning light.
(e) The words contained the innuendo or connotation that Mr Ford sexually prostituted himself.
87. By reason of the matters alleged in subparagraphs 4(a) to (c), 5(b) and 9(a) and paragraphs 85 and 86 above, the Fifth Respondent Mole sexually harassed the applicant in contravention of s. 28B(2) of the SDA
88. Further or alternatively to paragraph 87 above, by reason of the matters alleged in subparagraphs 4(d) and 5(c) and paragraphs 85 and 86 above, the Fifth Respondent Mole sexually harassed the applicant in contravention of s. 28B(6) of the SDA.
89. The Fifth Respondent Mole committed the acts of sexual harassment referred to in paragraphs 87 and 98 in connection with his employment.
Particulars
The conduct took place during working hours within Inghams[‘] premises and in connection with the Mole’s performance of his duties as a process worker engaged by Inghams and when Mr Ford was performing his duties for Inghams.
90. By reason of the operation of s. 106 of the SDA and the matters pleaded in paragraphs 87, 88 and 89, the First Respondent is liable for the sexual harassment by the Fifth Respondent Mole.
1109 In the amended defence of the first and third to fifth respondents, the fifth respondent denied paras 85 to 89 of the RFASOC, and the first respondent denied para 90 of the RFASOC.
1110 The applicant relevantly submitted:
Conduct of a sexual nature includes making a statement of a sexual nature to a person.
The expression “takes it up the arse” means and refers to an act of anal sexual intercourse.
The expression “cocksucker” is a description of male oral sex.
Both expressions are of a sexual nature.
It is irrelevant that the expressions were not intended or even taken to be used in the literal sense. The task under the legislation is to look at the words used and determine whether on the plain and ordinary meaning they are of a sexual nature. Otherwise, the policy intent of the provision would be undermined and if, for example, the same expressions were levelled at woman or the woman was called a whore or prostitute, the maker of the statement could rely on lack of intent and the circumstance that the recipient of the statement was known to be anything other than those things to avoid the provisions.
Mr Phillips stated that, based on his training at Inghams, he would regard the expressions “cocksucker” and “take it up the arse” as sexual harassment.
The conduct of Mr Mole on each occasion was clearly unwelcome by Mr Ford.
The statements were offensive and demeaning.
Sexually loaded language reinforced the power imbalance in favour of the power clique in the Red Area.
The words themselves were highly offensive irrespective of certain sections of the workforce (including Mr Mole himself) having a high degree of tolerance and regarding them as a “joke”.
1111 The respondents submitted, in summary:
The case against Mr Mole does not disclose a reasonable cause of action. Mr Ford gave affidavit evidence that the word “cocksucker” when allegedly used towards him had an “offensive sexual nature”, that it meant he “engaged in sex acts on the ‘bosses’ in return for favourable treatment at work” and Mr Mole was “accusing [Mr Ford] of prostitution”. However, in cross-examination, Mr Ford abandoned that evidence.
During cross-examination, Mr Ford gave evidence that he understood the language of “cocksucker”, “take it up the arse” and similar phrases to be devoid of a sexual meaning and that those phases meant “sucking up to the boss”, “ingratiating yourself with the bosses”, “[trying] to openly do the right thing” and “[showing] off a bit to show you are doing the right thing”. Mr Ford agreed that that was what he understood Mr Mole to mean when he said “cocksucker” to Mr Ford.
Despite Mr Ford’s evidence, he persisted in his claim that these statements represented “sexually loaded language”.
If the conduct alleged against Mr Mole is established, it is not capable of falling within the meaning of sexual harassment in the SD Act.
Whether or not a reasonable person would anticipate in the circumstances that Mr Ford would be offended, humiliated or intimidated, requires close attention.
Mr Ford himself used language such as “black cunt” and to that extent clearly took no issue with such language.
Mr Ford considered his own language in the Facebook posts he made on 30 August 2016 to be vile.
Mr Ford posted images online which were offensive to women, gay people, and people of other races, which pre-dated his employment with Inghams.
1112 As I noted earlier in relation to Agreed Issue 1(a), the Full Court in Hughes trading as Beasley and Hughes Lawyers v Hill [2020] FCAFC 126 observed that the three elements to s 28A of the SD Act were:
(1) Whether there have been any of the three identified forms of conduct: a sexual advance, a request for sexual favours or other conduct of a sexual nature.
(3) If an identified form of conduct occurred, whether the conduct was unwelcome to the personal allegedly harassed.
(4) If the identified form of conduct was unwelcome, are the circumstances such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct.
1113 Turning first to whether there has been a form of conduct identified in s 28A of the SD Act, I do not consider that Mr Mole’s language of calling Mr Ford a “cocksucker” or stating that Mr Ford “takes it up the arse” or “sucks the boss’s cock” was a sexual advance or a request for sexual favours as contemplated by the legislation. At its highest, such expressions could refer to Mr Ford engaging in sexual acts with others, but the language does not evince or suggest a request of Mr Ford, or an advance on the part of the user of that language towards Mr Ford.
1114 A question remains whether the language used by Mr Mole to Mr Ford constituted “conduct of a sexual nature”.
1115 In considering this question, I note again the comments of Justice Mansfield in Poniatowska v Hickinbotham [2009] FCA 680 at [294] (affirmed in Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92), that conduct of a sexual nature:
…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.
1116 Justice White in Stanley v Service to Youth Council Inc (2014) 225 FCR 317; [2014] FCA 643 also made the following comments in relation to the meaning of “conduct of a sexual nature” in s 28A(1) of the SD Act:
84. Section 28A(2) elaborates the expression “conduct of a sexual nature” to make it plain that it includes statements of a sexual nature, but the SD Act does not otherwise define the expression. In context, it appears to connote conduct involving or evidencing sexual attraction, instinct, activity or relationships. The expression may have a broad scope, and a wide range of matters may be able to be characterised as constituting conduct of a sexual nature. However, the expression is not without limits. Essentially it requires that the conduct be characterised as sexual, or sexually-related. In Poniatowska v Hickinbotham [2009] FCA 680 at [294], Mansfield J said that the term “conduct of a sexual nature” 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”. Mansfield J did not, however, attempt to set the outer bounds of the expression “conduct of a sexual nature”.
85. Whether conduct should be so characterised is to be determined objectively and does not depend upon the subjective intention of the actor.
86. The objective standard incorporated in the second limb of the definition relates to the position of the actor, and not to the response or reaction of the subject of the conduct. The question is whether a reasonable person would have anticipated that the subject would be offended, humiliated or intimidated.
1117 In Dye v Commonwealth Securities Limited [2012] FCA 242, the applicant, an employee at the Commonwealth Bank of Australia, alleged the following conversation took place between herself and a senior bank officer, Mr Patterson (as noted at [185]):
I was unsure where the conversation was going and was sick of it so I said “well you had better fix up your sex life with your wife before you go”.
Angus became very angry and told me to “shut up”.
He said “how dare you, you are nothing but a stupid blonde with big tits who nobody takes seriously anyway. You have nothing to offer the business and the only reason people talk to you is because they’re trying to fuck you.”
1118 Justice Buchanan made the following comments in relation to that alleged interaction:
159 I am not satisfied that this exchange occurred in either form, as alleged or in substance. However, for the sake of further discussion, for the moment I will assume that something to this general effect might have happened. On that assumption some general comments are needed. First, in Ms Dye’s version of any exchange of this kind I think it is likely that any coarse language attributed to Mr Patterson is the product of her imagination, rather than any recollection of what he said. Mr Patterson struck me as quite old-fashioned about matters of that kind and probably not given (at least when talking to women) to coarse or vulgar language of the kind attributed to him. Ms Dye, on the other hand, seemed to me to have very few reservations about the use of such language and to be prepared to use it freely.
160 The next point to make is that if such an exchange occurred it would not have represented any form of sexual harassment on the part of Mr Patterson. That is the significance with which Ms Dye’s counsel tried to invest the exchange but the suggestion will not survive even passing scrutiny. Offensive, insulting or inappropriate as such an outburst might be, it would not constitute sexual harassment merely because bodily parts or copulation were referred to. It would clearly not constitute a sexual advance or request for sexual favours. Nor would it constitute other conduct of a sexual nature. Whatever view is reached about any exchange that occurred at the restaurant that evening it cannot assist Ms Dye’s case. She had very clearly, on her version of events, entered territory which was none of her business. She could hardly complain if her attack provoked a response.
(Emphasis added.)
1119 I also note the following comments of Justice Buchanan in Richardson v Oracle Corp Australia Pty Ltd (2013) 232 IR 31; [2013] FCA 102 at [125]:
I see no relevant difference between the comment attributed to Mr Tucker by Ms Richardson, and that which he was finally prepared to accept he had made. The remark about being married in a past life may potentially be accepted as an intended jibe, but it is hard to be so charitable about anything which suggests that sex or make up sex was hot. I think that remark was, and was probably intended to be, humiliating. It was also unmistakeably sexually loaded. That is not to say that it necessarily represented sexual harassment if it had been the only incident to consider. It may have simply been offensive, without possessing the particular elements required to constitute sexual harassment. If it represented an offensive and insulting manifestation of aggression towards Ms Richardson, which was evidently not accompanied by sexual connotations as opposed to simple hostility, it would not become sexual harassment just because the allusions used were gender based or potentially sexually charged language was used. Such language is in everyday use in some quarters without it meeting the statutory tests for sexual harassment.
(Emphasis added.)
1120 The term “cocksucker” has been defined as follows:
Cock-sucker. A toady: low coll.: C. 19-20. Mostly (?orig.) US.
(Eric Partridge A Dictionary of Slang and Unconventional English (8th ed, Routledge & Kegan Paul, 1984))
1121 And:
Cocksucker, n.
coarse slang
1. A person who performs fellatio. Also more generally: a homosexual man (chiefly derogatory and offensive).
2. A stupid or obnoxious person. Frequently a contemptuous form of address.
(Oxford English Dictionary (3rd ed, 2019))
1122 Accordingly, while a person can be insultingly described as a “cocksucker” if a person performs fellatio, or is a homosexual man, the term is also used to insultingly describe a person who is deemed to be a “toady” or “stupid or obnoxious”.
1123 Mr Ford’s evidence in his affidavit as to what he understood the meaning of the expressions “cocksucker”, “taking it up the arse” and “sucks the boss’s cock” to be, when said to him by Mr Mole, was inconsistent with his evidence during cross-examination. In his affidavit, Mr Ford stated that Mr Mole was depicting him in a sexualised manner in front of other employees, suggesting he was a prostitute and performed oral sex to get the more favourable jobs. However, during cross-examination Mr Ford stated that he understood the expression “cocksucker” to mean someone who ingratiated themselves with “the bosses” by trying to do the right thing to get the better duties, and that the expression “taking it up the arse” – in the work context – meant the same thing (transcript p 222 ll 4-8).
1124 In my view Mr Ford’s evidence during cross-examination was more credible than that in his affidavit.
1125 Further, during his cross-examination, Mr Mole gave evidence that the expression “cocksucker” was not a sexual reference, but rather an insult directed to persons who were sycophantic or ingratiating. Despite my concerns in respect of Mr Mole’s credit as a whole, I consider this explanation is both plausible and consistent with well-known definitions of the expression “cocksucker”. Mr Collett gave similar evidence in respect of workers labelling others as “cocksuckers” where those others were perceived to receive favourable jobs or privileges “out of turn” (transcript pp 815-816).
1126 I am not persuaded that Mr Mole’s words (that Mr Ford was a “cocksucker” and that he “sucked the boss’s cock” and that he “[took] it up the arse”), in the context in which they were used, could be interpreted as suggesting that Mr Ford was, did, or was a person of a character empathetic to, prostituting himself to any of the managers at Inghams in return for favourable work. In my view this suggestion is simply not credible in the circumstances of the case. Plainly, Mr Mole’s words were an insult to Mr Ford, motivated by Mr Mole’s apparent envy or resentment of Mr Ford’s perceived ability to receive favourable duties “out of turn”, and suggestive that this alleged favouritism towards Mr Ford on the part of Inghams’ management derived from a sycophantic approach by Mr Ford towards Inghams’ management.
1127 Mr Mole’s language towards Mr Ford was not “conduct of a sexual nature” within the meaning of s 28A(1) of the SD Act. To paraphrase comments of Justice Buchanan in Dye: as offensive, insulting or inappropriate as such language as Mr Mole’s words to Mr Ford might have been, those words would not constitute conduct of a sexual nature towards Mr Ford merely because Mr Mole referred to body parts or copulation.
1128 Even if the conduct was capable of characterisation as conduct of a sexual nature within the meaning of s 28A(1) of the SD Act, I am not satisfied that Mr Ford’s claim would satisfy the second and third elements of s 28A of the SD Act as stated by the Full Court in Hughes v Hill.
1129 As I previously noted, whether conduct is unwelcome is a subjective question: Hughes v Hill at [23]. Conduct may be regarded as unwelcome if it is not solicited and is regarded as undesirable or offensive: Aldridge v Booth (1988) 80 ALR 1 at [5]. The applicant submitted that the conduct was “clearly unwelcome by Mr Ford” and that the words were “highly offensive irrespective of certain sections of the workforce including Mr Mole himself having a high degree of tolerance and regarding them as a ‘joke’”. However, considering Mr Ford’s own use of language, including telling alleged perpetrators of conduct to “fuck off”, and the language he used in Facebook posts (which I set out below), I am not satisfied that expressions such as “cocksucker” and “takes it up the arse” were “clearly unwelcome” to Mr Ford.
1130 Further, the respondents pointed to Mr Ford’s own use of language and Facebook posts (which they alleged were offensive to women, gay people and people of other races) to support a submission that a reasonable person would not have anticipated that Mr Ford would be offended, humiliated or intimidated by such expressions as “cocksucker” and “takes it up the arse”. I consider this submission to have merit. Mr Ford did not appear adverse to the use of abusive language when it suited him, having used phrases such as “tie the cunt up and make him watch” and “pack of fucken ho mo cunts” in Facebook posts. During cross-examination, Counsel for the respondent also took Mr Ford to other posts and comments he had made on Facebook, including the following:
Sharing a picture with the comment: “Holden fans are faggots. Case dismissed”.
Sharing a link to an eBay listing for a hair loss product, posting: “Todd, thought you would like this so that next time you’re sucking some guy’s cock he can grab you by the hair as you don’t seem to have any, mate. LOL”.
Sharing a photo with the title “Silly Australian You’re Eating our Lamb Wrong”, where the picture depicted a man seemingly without trousers leaning over a sheep and apparently putting his face in the sheep’s genital region.
1131 Mr Ford was Facebook friends with several co-workers at Inghams, including Mr Rafferty, Mr Waldock, Mr Muhic and Mr Okoro (transcript p 229 ll 10-20), and those co-workers would have had access to Mr Ford’s Facebook posts.
1132 I am not satisfied that a reasonable person would consider that Mr Ford would be offended, humiliated or intimidated by such expressions as “cocksucker” and “takes it up the arse” when it is apparent that Mr Ford casually used similarly intemperate language.
1133 The applicant’s claims in respect of Agreed Issue 1(r) are not substantiated. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act.
Agreed issue 1(k): The Third Respondent in about July 2016 engaged in the conduct of pulling down his pants and exposing his buttocks to the Applicant in the feather room as alleged in paragraph 37 of the RFASOC.
agreed Issue 1(n): The Second and Third Respondents in about June 2016 in sight of the Applicant engaged in the conduct of encouraging Anthony Collett to pull down his pants and expose his genitals in the feather room as alleged in paragraph 49 of the RFASOC.
agreed Issue 1(q): The Fourth Respondent in about late July or early August 2016 in sight of the Applicant engaged in the conduct by exposing his testicles and rubbing them on Bijo Varghese in the locker room as alleged in paragraph 73 of the RFASOC.
1134 Agreed Issue 1(k) is referable to paras 37 to 39 of the RFASOC, which provide:
Waldock exposes his buttocks to Mr Ford
37. In about July August 2016, in the feather room, Waldock pulled down his pants and exposed his buttocks to Mr Ford (“the act”).
Particulars
(a) Mr Ford was working in the feather room when he saw Waldock enter.
(b) Mr Ford was working up on the stand.
(c) Waldock walked past Mr Ford.
(d) Waldock stopped in Mr Ford’s line of sight and proceeded to pull his pants down and expose hit bare buttocks to Mr Ford.
(e) Waldock did the act in a jovial manner.
(f) Other employees were working in the area.
38. Mr Ford:
(a) Did not solicit the conduct pleaded in paragraph 37 above;
(b) Mr Ford did not have time to respond to the act.
39. The conduct of Waldock pleaded in paragraph 37 above caused Mr Ford to feel humiliated, offended, belittled, anxious, distressed, worried, depressed and intimidated.
1135 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 37 to 39 of the RFASOC.
1136 Agreed Issue 1(n) is referable to paras 49 to 51 of the RFASOC, which provide:
Rafferty and Waldock encourage Collett to expose his penis
49. In about June 2016, in the feather room, in the sight of Mr Ford, Rafferty and Waldock encouraged Collett to pull his pants down and expose his genitals (the “conduct”).
Particulars
(a) The conduct occurred late in the evening.
(b) Mr Ford was in the feather room replacing the plucker fingers.
(c) He was talking with Collett.
(d) Rafferty and Waldock got Collett’s attention from the other side of the machine.
(e) Rafferty and Waldock began joking and laughing with Collett and speaking with him, appearing to be urging Collett.
(f) Collett pulled his pants down and exposed his penis so that Mr Ford could see it.
(g) Rafferty, Waldock and Collett laughed at the conduct.
50. Mr Ford:
(a) Did not solicit the conduct pleaded in paragraph 49 above;
(b) Communicated to Rafferty and Waldock that the conduct was unwelcome by looking at them with disgust.
51. The conduct of pleaded at paragraph 49 above caused Mr Ford to feel:
(a) Disgusted and offended,
(b) humiliated,
(c) distressed,
(d) intimidated,
(e) anxious and depressed when remembering it.
1137 In the amended defence of the first and third to fifth respondents, the third respondent denied paras 49 to 51 of the RFASOC.
1138 In the amended defence of the second respondent, the second respondent denied paras 49 to 51 of the RFASOC insofar as those paragraphs related to him
1139 Agreed Issue 1(q) is referable to paras 73 to 75 of the RFASOC, which provide:
Phillips exposes his testicles and slaps them on Bijo
73. In about late July or early August 2016, in the locker room, in the sight of Mr Ford, Phillips exposed his testicles and rubbed his testicles on Bijo’s face and head (the “conduct”).
Particulars
(a) Mr Ford was in the locker room during a break.
(b) Co-workers were present in the locker room.
(c) Phillips was in the locker room getting changed.
(d) Mr Ford heard laughter.
(e) He turned and saw that Phillips had his underpants pulled to the side to expose his testicles[.]
(f) He then saw Phillips approach Bijo who was bent over getting ready for work.
(g) Phillips, with his pants off, approached Bijo and used his testicles to hit Bijo on the face and head.
(h) Phillips laughed when he engaged in the conduct.
74. Mr Ford did not solicit, participate in or encourage the conduct pleaded in paragraph 73 above.
75. The conduct pleaded in paragraph 73 above caused Mr Ford:
(a) immediate shock;
(b) to feel revulsion, offence, humiliation and intimidation;
(c) to feel anxious and to feel depressed.
1140 In the amended defence of the first and third to fifth respondents, the fourth respondent denied paras 73 to 75 of the RFASOC.
1141 As Agreed Issues 1(k), 1(n) and 1(q) all involve allegations of conduct wherein a co-worker at Inghams exposed himself in some form in the presence of Mr Ford, I consider it appropriate (particularly in light of the applicant’s reliance on tendency evidence and evidence of a culture) to discuss the evidence relevant to these issues together.
Evidence of the applicant
Mr Ford
1142 In relation to Agreed Issue 1(k), Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [273]–[278]:
In about July 2016, Mr Ford was working up on the stand in the feather room during the evening.
Mr Ford placed the timing in early July 2016, because he did not think he had been in his car accident or put on light duties at that stage. He estimated the incident occurred about a week prior to his car accident.
Mr Waldock entered the feather room and walked past Mr Ford while Mr Ford was working.
Mr Waldock stopped about three metres from Mr Ford, in Mr Ford’s line of sight.
Mr Waldock was standing upright and pulled his pants and underwear down and then bent over, exposing his bare buttocks. This happened quickly, in about 10 seconds or less.
Mr Waldock then pulled up his pants and continued with his duties.
Mr Waldock’s manner was jovial.
Mr Ford could see Mr Waldock’s face and Mr Waldock was smiling.
Only he and Waldock were in the room as it was around 6.00 pm or 7.00 pm, production was still running, and only he and Mr Waldock had been rostered in there for the day.
Mr Ford did not invite Mr Waldock to expose his buttocks.
Mr Ford did not have time to respond because the conduct was over quickly and Mr Waldock walked off.
Even though Mr Ford maintained a friendly relationship with Mr Waldock, Mr Ford was worried about the continuation of offensive conduct, but felt he could do nothing about it.
Mr Ford still believed that if he befriended Mr Waldock, Mr Ford could earn Mr Waldock’s respect, and that the sexual behaviour towards him would stop.
1143 Mr Ford was not substantially cross-examined in relation to this issue.
1144 In relation to Agreed Issue 1(n), Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [248]–[255]:
He was in the feather room one evening in about June 2016, replacing the plucker fingers and talking to Mr Collett.
Mr Waldock and Mr Rafferty attracted Mr Collett’s attention from the other side of the machine.
He believed that they were the only people in the feather room at the time.
Mr Waldock, Mr Rafferty and Mr Collett appeared to be talking casually, joking amongst each other and smiling at one another.
Mr Collett then pulled down his pants and underwear to his upper thighs, exposing his penis to Mr Waldock and Mr Rafferty.
Mr Waldock and Mr Rafferty were encouraging Mr Collett by their manner and actions and by laughing and joking.
Mr Collett was standing about one metre to the side of Mr Ford.
Mr Collett held his hand down at his genital area and grabbed his crotch and appeared to be waving his penis around. This lasted for about 3 seconds.
Mr Ford could not see Mr Collett’s testicles or penis.
Mr Waldock, Mr Rafferty and Mr Collett appeared to regard this as “hilarious”. They were laughing and acting in a joking manner.
Mr Collett appeared to encourage and condone the conduct by his behaviour.
The conduct contributed to Mr Ford’s anxiety.
1145 The respondents objected to aspects of Mr Ford’s evidence on the basis of relevance, opinion, and that it was unfairly prejudicial and misleading. In my view Mr Ford’s evidence in relation to these claims is admissible:
In relation to his alleged emotions relating to the alleged conduct – the evidence was relevant as supporting Mr Ford’s explanation for failing to earlier complain about the alleged conduct. I do not consider that there is a risk that the Court will be misled by such evidence.
In relation to Mr Ford’s evidence that Mr Collett “condoned” the conduct involving him – the evidence was relevant as it supported Mr Ford’s claim that Inghams’ management was equivocal about the alleged conduct. I do not consider that there is a risk that the Court will be misled by such evidence.
1146 In relation to Agreed Issue 1(q), Mr Ford relevantly deposed in his redacted affidavit sworn 4 June 2018 at [297]–[302]:
In late July or early August 2016, Mr Ford was in the locker room during the evening with a number of employees who were on a break.
Mr Ford believed the conduct happened in late July or early August 2016 because it happened before the incident involving Mr Rafferty and Mr Waldock performing simulated sex acts of Mr Varghese, but after Mr Ford’s car accident.
Mr Phillips was in the locker room, and had just returned from smoking a cigarette.
Mr Ford’s attention was drawn to a group of employees getting changed, when he heard laughter erupt. Mr Ford saw Mr Phillips in his underwear and shirt, without pants on.
Mr Varghese was bent over getting something out of his bag. Mr Varghese was next to Mr Phillips and his head was below the level of Mr Phillips’ waist.
Mr Phillips used his hand to pull the leg of his underwear to one side to expose his testicles.
Mr Varghese lifted his head to see what was going on, and Mr Phillips moved toward Mr Varghese and “whack[ed] his testicles on Bijo’s face and head”. Mr Phillips used his hand to slap his testicles backwards and forwards over Mr Varghese’s face and head for approximately 10 seconds. Mr Phillips was laughing during this.
There were around five other workers around and several of them were laughing.
Mr Ford did not laugh, and noticed that Mr Ogg (who also witnessed the incident) did not laugh either.
He found the conduct disgusting and revolting, and could not talk about it to other employees.
Mr Ford was offended by the conduct and humiliated that Mr Phillips would do this in view of everyone, and that fellow employees laughed at it.
Mr Bhardwaj
1147 In the First Bhardwaj Affidavit, Mr Bhardwaj relevantly deposed at [23] as follows:
Mr Waldock and Mr Phillips frequently pulled down their pants in the locker room and exposed their genitals to workers who were nearby.
He had heard Mr Waldock say “check out my balls” and proceed to pull his pants down and expose his testicles. He had seen Mr Phillips do the same thing.
1148 In the Third Bhardwaj Affidavit, Mr Bhardwaj relevantly deposed, by reference to the evidence he gave at [23] of the First Bhardwaj Affidavit:
He had witnessed the conduct happen at the end of his shift, in the locker room, when he was getting changed.
To the best of his recollection, he saw Mr Phillips engage in the conduct on three separate occasions.
To the best of his recollection, he saw Mr Waldock engage in the conduct on two separate occasions.
1149 Mr Bhardwaj was not cross-examined on this evidence.
Mr Ogg
1150 In the Third Ogg Affidavit, Mr Ogg relevant deposed as follows:
He had witnessed Mr Phillips pull his pants down in the locker room and expose his testicles for everyone to see.
On at least three occasions, he recalled Mr Phillips putting his testicles next to Mr Lucht’s face while Mr Lucht was bent over in the locker room.
Mr Lucht was unaware of what Mr Phillips was doing, and when Mr Lucht turned around, Mr Phillips’ testicles came into contact with Mr Lucht’s face. This happened in front of other workers. He had witnessed Mr Phillips do this same thing to Mr Hannett.
1151 In the Fourth Ogg Affidavit, Mr Ogg relevantly deposed as follows:
He had seen Mr Phillips pull his pants down and show his genitals in the locker room.
On one occasion, Mr Phillips put his genitals in the face of Mr Varghese. Mr Phillips also did this to Mr Lucht and Mr Hannett.
Mr Phillips would do this at the end of the shift. He would have his underwear on and then expose his genitals. Mr Phillips appeared to do this to make the men in the locker room laugh.
He had witnessed Mr Rafferty and Mr Waldock pull their pants down and expose their underwear in the feather room. On each occasion, they were smirking, although Mr Ogg recalled some occasions when Mr Waldock did not laugh or smirk. Mr Ogg stated: “I cannot describe the expression on his [Mr Waldock’s] face but it was different”.
He recalled noticing that other workers laughed at Mr Rafferty and Mr Waldock pulling their pants down.
1152 During cross-examination, Mr Ogg gave the following evidence in relation to when Mr Phillips put his genitals near Mr Varghese’s face:
And I suggest to you that Wade Phillips never brought his genitals near to the faces of his co-workers who you’ve given evidence about today?---No. I have seen him do that.
When was it?---I can’t remember the date, but if I had to say a year by – if I went by year, say it would have, probably, happened after 2009.
Anything more specific than that?---I could maybe say “2012 to 2014”; may be in that time-frame.
So when do you say he brought his genitals close to Bijo Varghese’s face?---Yes.
You’re saying that happened somewhere between 2009 and 2014?---Yes; that’s - - -
All right?---That’s best I can give.
(Transcript p 462 ll 32-46.)
Mr Ly
1153 In the First Ly Affidavit, Mr Ly relevantly deposed as follows:
Mr Waldock, Mr Rafferty and Mr Mole had engaged in, among other things, such conduct as exposing their genitals to another worker.
Mr Waldock, Mr Rafferty and Mr Mole had engaged in, among other things, such conduct as rubbing their genitals on another worker.
He had witnessed Mr Rafferty and Mr Waldock, among other things, “rub their genitals on Richard”.
1154 In the Third Ly Affidavit, Mr Ly relevantly deposed as follows:
Mr Rafferty and Mr Waldock had rubbed their genitals on another worker on many occasions in the feather room, and at least once per week.
Mr Ly also saw Mr Rafferty and Mr Waldock rub their genitals on workers near the drink fountains, when workers were drinking from the drink fountains, and in the locker room, when workers were getting changed.
Mr Rafferty and Mr Waldock were wearing pants when they rubbed their genitals on other workers.
Mr Ly also saw Mr Rafferty and Mr Waldock rub their genitals on each other.
He had witnessed Mr Rafferty and Mr Waldock rub their genitals on Mr Ford on a few occasions, but he could not recall the dates.
When Mr Waldock and Mr Rafferty rubbed their genitals on Mr Ford, they were wearing clothing.
1155 During cross-examination, Mr Ly gave the following relevant evidence:
He could not give a date for when Mr Rafferty, Mr Mole and Mr Waldock rubbed their genitals on another staff member.
The conduct happened in the feather room and the hanging room.
He disagreed that the conduct was not happening in 2015 and 2016.
The conduct had happened to Mr Ford in the feather room, when Mr Ly was in the feather room towards the end of the shift, with many other people around.
(Transcript pp 478 ll 17-47; 480 ll 19-35.)
Evidence of the respondents
Mr Rafferty
1156 Mr Rafferty, in his affidavit sworn 7 July 2018, deposed that:
On his first day of work in the Red Area at Inghams in or around 2008, he went up to a worker called Ashley to introduce himself. Ashley kept looking at Mr Rafferty, but didn’t say anything. Mr Rafferty realised Ashley’s pants were slightly lowered with his hips forward and his penis hanging over his pants. Mr Rafferty was extremely shocked.
Mr Rafferty had never exposed his genitals to anyone at Inghams.
He had not encouraged Mr Collett (either together with Mr Waldock or acting alone) or any other employee to expose their genitals in front of Mr Ford or at any other time.
He did not recall Mr Collett exposing his genitals in the feather room on any occasion.
1157 During cross-examination, Mr Rafferty gave evidence that the incident that occurred on his first day was shocking and unexpected, and that he did not consider that it was “normal” (transcript p 516 ll 22-47).
During cross-examination, Mr Rafferty also gave evidence that he did not have a recollection of Mr Waldock encouraging Mr Collett to expose his genitals or of Mr Waldock exposing himself, stating that “Mr Waldock would never do anything like that” (transcript pp 584-585).
Mr Waldock
1158 In his affidavit affirmed 5 July 2018, Mr Waldock relevantly deposed as follows:
He had never pulled his pants down in the locker room to purposively expose his genitals to workers who were nearby. He had never said to anybody at the workplace “check out my balls”, before or after pulling his pants down. He would never show any part of his body like this as he was very body-conscious.
He denied that he had ever seen or heard of Mr Collett pulling his own pants down and exposing himself to Mr Waldock, or to anyone at Inghams, at any time during Mr Waldock’s employment at Inghams. This incident did not happen.
He had never pulled his pants down and exposed his buttocks as Mr Ford claimed, nor done so in the work place at any time. He would not show his body like this as he was very body conscious. If, for example, he had to take his shirt off, he would go into the shower block so that nobody could see him.
1159 Mr Waldock was not cross-examined in relation to this evidence.
Mr Phillips
1160 In his affidavit affirmed 6 July 2018, Mr Phillips relevantly deposed as follows:
He had never pulled his pants down in the locker room to purposively expose his genitals to workers who were nearby.
He had never said to anyone at the workplace to “check out [his] balls”, before or after pulling down his pants.
He did “strip off” in the locker room because it was a changing room.
It was common for workers to “strip off” in the locker room.
The incident alleged by Mr Ford, where Mr Phillips rubbed his testicles on Mr Varghese’s face, did not happen. Mr Phillips would never do something like this.
He was not sure who Mr Varghese was by name.
He had not rubbed his testicles on any co-worker at any time.
1161 During cross-examination, Mr Phillips gave the following relevant evidence:
There may have been one or two instances when he took a shower where he left the door open, but generally he would not leave the door open.
He did not recall engaging in dancing behaviour in the shower with another man. He could not see himself ever dancing in the shower.
He did not recall engaging in behaviour in the shower with the door open so that “the boys” could have a laugh.
He had not seen behaviour in the locker room where someone exposed their testicles and rubbed them on the head and face of other employees, nor had he engaged in such behaviour.
The showers were isolated from the rest of the locker room, such that he doubted that he would have done something, or said something, to get a “bit of a laugh” when in the shower.
(Transcript pp 682-683.)
Mr Collett
1162 In his affidavit affirmed 6 July 2018, Mr Collett gave the following relevant evidence:
He strongly denied that he ever pulled his pants down to expose himself to Mr Ford or anybody at Inghams.
This was not something he would have ever done, at work or otherwise.
The allegation was offensive.
The allegation that he would act so inappropriately, soon after being given a final warning (in May 2016 for smoking outside the chemical room), was unbelievable.
1163 Mr Collett maintained his denial of the alleged conduct during cross-examination (transcript pp 824-825).
Mr Vargehese
1164 In his affidavit affirmed 5 July 2018, Mr Varghese gave the following relevant evidence:
In response to paras 297 to 299 of the Ford Affidavit, Richard says that Wade Phillips exposing his genitals and slapped them on me in late July or early August 2016. I disagree that this ever happened. This kind of behaviour has never happened to me and I have never seen or heard any behaviour like that. If I did see anything like this, or if it happened to me, I would go straight this to my supervisor or you would go to HR. Also, although I know Wade Phillips, I cannot remember ever working on a shift with Wade as we do different jobs.
1165 During cross-examination, Mr Varghese gave evidence that he did not see Mr Phillips that often, as they worked different jobs. Mr Varghese also gave evidence that he could not remember seeing Mr Phillips coming out of the showers without any towel covering Mr Phillips in 2015, and that, if he had, he would have reported that to the human resources department at Inghams (transcript p 997 ll 8-17).
Mr Mole
1166 In his affidavit affirmed 5 July 2018, Mr Mole denied Mr Ly’s allegation that he had engaged in exposing his genitals to other workers.
Mr Hannett
1167 During cross-examination, Mr Hannett gave the following relevant evidence:
Wade likes to make jokes, doesn’t he?---Well, most workers do.
Yes. Pull pranks?---Who?
Does Wade pull pranks?---Oh, not – not that I observed at all.
Have you seen him – you’ve been in the locker room before and after work?---I’m always – I was always the first one to work out of the red area, one of the last ones to leave.
Yes. And have you seen Wade, as a bit of a joke, pull out his penis and testicles and attract attention?---Only when they came out of the shower.
And he would attract attention to himself as a bit of a joke?---But he just walked out of the shower without a towel on.
Okay.
HER HONOUR: So what did you – what did you just say?---He walked out of the shower without a towel on.
Wade Phillips did?---Yes. When he had had a shower after work before they go home.
Right. Thank you.
MR REIDY: And that was something that you at least remember?---Yes.
Because he didn’t have a towel on?---That’s so.
Did you think that was inappropriate?---No. It was just a male locker room.
Okay. But something that sticks in your memory?---Well, lot of workers walked to have a shower without towels, so you sort of - - -
Well, which ones didn’t?---Well, I know Wade - I know Wade doing it, because he was always one of the last to leave work.
And did he, when he came out of the shower, have a – play pranks on people using his penis and testicles, for example, to put them near someone’s face while they were bending over?---I never witnessed anything like that.
You sure?---Sure.
(Transcript pp 914 ll 1-43.)
Other witnesses
1168 Mr Okoro, Mr Dhanoa, Mr Levaai, Mr Flanders, Mr Rahiwi, Mr Lucht, Mr Johnson, Mr Chan and Ms Horne all made statements in late November 2016 or early December 2016, during the workplace investigation, that they had never seen, heard of, nor been the perpetrator of exposing their genitals to other workers.
Consideration
1169 Whilst the evidence relevant to Agreed Issues 1(k), 1 (n) and 1(q) is broadly similar as referable to conduct, witnessed by Mr Ford, involving some form of alleged genital or buttocks exposure by a co-worker, I consider the distinctions between Issues 1(k), 1(n) and 1(q) warrant that the detail of each issue and associated claims in the RFASOC be examined separately.
Agreed Issue 1(k)
1170 In relation to this issue, the applicant relevantly submitted:
The conduct was unwelcome, and Mr Ford’s evidence in this respect has not been contradicted.
Exposure of buttocks, a private area of the body normally clothed, is conduct of a sexual nature.
The evidence of Mr Ford should be preferred to Mr Waldock, who was not a credible witness.
The circumstantial evidence, the evidence of a culture or system and the tendency evidence support the drawing of an inference that Mr Waldock engaged in the conduct.
1171 In relation to this issue, the respondents relevantly submitted:
Mr Ford’s evidence was inconsistent. In particular, Mr Ford’s evidence was that there were no other people present at the time of the incident because production was still running, and only he and Mr Waldock were rostered in the feather room that day. However, para 37(f) of the RFASOC pleaded that other employees were working in the area.
It was inconsistent with the objective state of affairs, such as the layout of the Red Area, as well as the applicant’s own narrative of events, for Mr Ly, Mr Ogg or Mr Bhardwaj to have witnessed the range and frequency of conduct stated in their later affidavit evidence.
1172 In considering this issue, I make the following observations.
1173 Despite para 37(f) of the RFASOC, Mr Ford’s evidence was that the relevant conduct happened when no other workers were around. The resolution of this issue is therefore substantially dependent on whether I prefer the evidence of Mr Ford, or the evidence of Mr Waldock.
1174 On balance, I prefer the evidence of Mr Waldock in respect of Mr Ford’s allegation of this conduct, to evidence of Mr Ford. In particular, I find as follows:
Notwithstanding Mr Ford’s evidence, as I have already observed in the course of this judgment, no plausible explanation has been given by Mr Ford for his continued association outside of working hours with Mr Waldock, in circumstances where Mr Ford alleged that Mr Waldock was harassing him in the distressing manner Mr Ford has alleged.
Evidence of Mr Bhardwaj, Mr Ly and Mr Ogg did not corroborate Mr Ford’s allegation. Only Mr Ogg gave evidence of potentially similar conduct (being that Mr Rafferty and Mr Waldock allegedly pulled their pants down and exposed their underwear in the feather room).
No other witness gave evidence that a worker at Inghams had exposed their buttocks.
There is no credible evidence before the Court to support a finding of tendency on the part of Mr Waldock to expose his buttocks (or genitals) from which an inference concerning the alleged conduct in Agreed Issue 1(k) could be drawn. Evidence of Mr Bhardwaj, Mr Ly and Mr Ogg which they gave in respect of Mr Waldock was inconsistent. For example:
(v) Mr Bhardwaj gave evidence that Mr Waldock had pulled his pants down and exposed his genitals to workers saying “check out my balls” in the locker room;
(w) Mr Ly gave evidence of Mr Waldock and Mr Rafferty allegedly exposing their genitals to other workers in the feather room; and
(x) Mr Ogg only gave evidence of underwear exposure by Mr Rafferty and Mr Waldock in the feather room.
In light of the lack of consistency as to the type and place of the conduct, the lack of particularisation of dates the conduct was engaged in, and my earlier credit findings in respect of these witnesses, I give no weight to evidence of Mr Bhardwaj, Mr Ly and Mr Ogg in respect of Mr Waldock’s alleged conduct.
There is no credible evidence before the Court of a culture of such buttock or genital exposure conduct at Inghams, including a culture endorsed by management. Mr Rafferty gave evidence that a co-worker had exposed his genitals to Mr Rafferty, once, many years before. A single historical incident does not support a finding of a culture at Inghams where Mr Waldock would be comfortable exposing his buttocks to Mr Ford.
1175 On balance, the weight of credible evidence does not support Mr Ford’s claims in respect of Agreed Issue 1(k). I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act.
Agreed Issue 1(n)
1176 In relation to this issue, the applicant relevantly submitted:
Mr Collett was a current employee of Inghams, and so was unlikely to want to jeopardise his position (already having had a disciplinary encounter in 2016) by admitting to any of the conduct alleged.
Mr Collett had conversations with Mr Waldock about the case and what was going to be said in response to the allegations.
Mr Collett believed in a culture that employees should not “narc”. “As a matter of honour”, Mr Collett would not be inclined to “dob on” his current work colleague.
Mr Rafferty’s response to the alleged incident was that he had no recollection of it.
Mr Ford’s evidence should be preferred to the evidence of Mr Collett, Mr Rafferty and Mr Waldock.
The circumstantial evidence, the evidence of a culture or system and the tendency evidence support the drawing of an inference that Mr Collett, Mr Rafferty and Mr Waldock engaged in the relevant behaviour.
1177 The respondents made written submissions in relation to whether this conduct would fall within the meaning of “sexual harassment” in the SD Act. The respondents also submitted that the alleged incident did not form part of the complaint Mr Ford made to the AHRC.
1178 I have found that Mr Ford’s pleaded case is not broader than his AHRC complaint. However, I do not consider that Mr Ford has established this aspect of his claim. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, for the following reasons.
1179 First, other than Mr Ford, no witness gave evidence of Mr Collett ever engaging in exposing his genitals to other workers, such that a tendency on the part of Mr Collett to engage in such conduct could be inferred.
1180 Second, while Mr Bhardwaj, Mr Ogg and Mr Ly gave varying evidence concerning four co-workers out of the entire Inghams’ workforce (namely Mr Phillips, Mr Waldock, Mr Rafferty and Mr Mole) allegedly engaging in conduct involving genital exposure, this did not mean the Court should readily find either that Mr Collett had acted as Mr Ford alleged, or that there was a culture at Inghams where Mr Collett would expose his genitals as Mr Ford alleged.
1181 Third, Mr Collett, Mr Waldock and Mr Rafferty denied that the conduct alleged by Mr Ford occurred. The applicant appeared to accept that Mr Collett valued his job at Inghams. I note in particular Mr Collett’s evidence that he would not act in the manner alleged by Mr Ford to jeopardise his employment so soon after being given a final warning. In my view this evidence of Mr Collett is plausible.
1182 Fourth, Mr Ford’s evidence was that, from the position he was standing on the factory floor, he did not actually see Mr Collett’s genitals when Mr Collett allegedly exposed himself to Mr Rafferty and Mr Waldock. It follows that Mr Ford simply inferred that Mr Collett had done so.
1183 Fifth, notwithstanding the applicant’s submission to this effect, and as I have already discussed, no credible basis has been advanced from which I can infer that there was collusion between Mr Collett and Mr Waldock in relation to Mr Collett’s evidence concerning this issue.
1184 On balance, the weight of credible evidence does not support Mr Ford’s claims in respect of Agreed Issue 1(n).
Agreed Issue 1(q)
1185 In summary the applicant relevantly submitted:
Mr Ogg witnessed the incident.
It was clear that Mr Ogg was struck by Mr Phillips’ exhibitionism in the locker room and his highly unusual antics, not only in relation to Mr Varghese, but also Mr Lucht as well as the shower incident, and that it left an impression. These are events which are very likely to stick in the mind because they are so out of the ordinary, dumbfounding and lewd.
Mr Varghese became very agitated before he was asked any questions directly related to the incident. In response to a straightforward question about whether he saw Mr Phillips come out of the shower in the locker room without a towel, Mr Varghese’s instant response was “I can’t remember”, and then he moved into a panicked and nonsensical answer that if it happened he would report it to his supervisor or to human resources.
Mr Varghese was very comfortable with his life “in which this job [gave] him peace”. He did not want to jeopardise his job.
Mr Vargehese’s evidence should be treated with caution. He presented as an evasive witness, anticipating questions and trying to and answer them before they were asked. He became particularly agitated every time the matter of Mr Phillips came up and did his best to disavow knowledge of Mr Phillips (although he clearly knew him) and any connection with Mr Phillips in the locker room.
Mr Varghese’s evidence that he did not know Mr Phillips was inconsistent with his evidence later during cross-examination, when he said that he was able to recognise Mr Phillips in the feather room.
Interestingly, when Mr Hannett was asked whether Mr Phillips would pull out his penis and testicles to attract attention, he said “only when he came out of the shower”. The answers were a little odd in the circumstances.
The evidence of Mr Ford and Mr Ogg should be accepted in preference to the evidence of Mr Varghese.
Mr Phillips was not a witness of credit.
The court can be comfortably satisfied that the incident did occur based on the evidence of Mr Ford and Mr Ogg.
The evidence of a culture or system, the circumstantial evidence of the variety of sexualised conduct in this workplace and the tendency evidence allow for an inference to be drawn that it was very likely, within the context of this workplace, that Mr Phillips engaged in the alleged conduct.
1186 In relation to this issue, the respondents submitted:
The alleged incident did not form part of the complaint Mr Ford made to the AHRC.
Mr Ford could not confirm who was present when the incident occurred (with the exception of Mr Ogg).
Mr Ogg corroborated Mr Ford’s version of events for the first time in the Fourth Ogg Affidavit.
Mr Vargehese denied that the alleged conduct occurred.
1187 I have found that Mr Ford’s pleaded case is not broader than his AHRC complaint. However, I do not consider that Mr Ford has established this aspect of his claim. I have formed this view, taking into account the gravity of the matters alleged in accordance with s 140(2)(c) of the Evidence Act, for the following reasons.
1188 First, Mr Varghese strongly denied that the incident alleged by Mr Ford ever occurred. I have been given no sound reason to doubt the veracity of Mr Varghese’s denial. The applicant’s submissions concerning Mr Varghese’s “unease” in giving evidence during the hearing in respect of this issue are not persuasive. Rather, in my view any unease on the part of Mr Varghese can be simply explained by Mr Varghese’s embarrassment at being required, in the formal environment of a Court, to discuss such allegations concerning himself – correctly described by the applicant as “dumbfounding and lewd” – when Mr Varghese insisted that the allegations were untrue. I find any “unease” of Mr Varghese in such circumstances perfectly understandable. Further, as I have already observed in relation to witnesses who continued to be employed by Inghams (such as Mr Muhic), no credible evidence has been advanced to suggest that Mr Varghese was fearful of losing his job if he gave evidence in support of Mr Ford’s case.
1189 Second, it seems highly implausible that, if Mr Varghese were bent over and his face came into contact with Mr Phillips genitals, Mr Varghese would remain in that position and allow Mr Phillips to “slap his testicles backwards and forwards over Bijo’s face and head for approximately 10 seconds”. There is no evidence that Mr Vargehese was being restrained in that bent over position, for that extraordinary length of time. It is far more likely that, if the conduct had occurred, Mr Varghese would have immediately stood up or moved away. Mr Ford’s claim and related evidence is simply not credible.
1190 Third, Mr Ford’s evidence in relation to whether he told other co-workers about the conduct in Agreed Issue 1(q) was inconsistent. In particular, his affidavit evidence was that he could not talk to other employees about the conduct. However during cross-examination, Mr Ford gave the following, confused, evidence in relation to whether he spoke to other employees about the alleged conduct:
All right. I take you to paragraph 300 - - -?---Yes.
- - - of your affidavit. You say, about halfway down – so that’s the – one, two, three – the fourth line – if you go over to a sentence beginning, “I could not talk about it”?---Yes.
In fairness, I will just read you a little bit more of that paragraph to explain – I suppose, to put it in context. You say:
I was shocked by what I saw, even though I had seen and experienced a number of incidents of a shocking nature up to that point. I was shocked each time something happened to me or I witnessed this type of conduct against others. I found the conduct to Phillips disgusting and revolting. I could not talk about it to other employees.
?---Yes.
So that’s the case, isn’t it? You didn’t tell anyone. You didn’t talk to anyone about any of this happening in the factory?---Untrue.
Well, do you agree that you say in your own affidavit:
I could not talk about it to other employees.
?---Yes.
All right.
HER HONOUR: Could I just ask – what do you mean by that, Mr Ford?---By - - -
You said – there’s an issue about the extent to which you talked to other employees about it?---Yes. I spoke to a few of my close – close friends, but kept it pretty quiet – just spoke to a couple of real close people about what was going on and how they dealt with it, your Honour.
Thank you.
MS REECE: Mr Ford, have you ever, in your evidence, said you talked to your coworkers about what was happening to you at Inghams?---I’m unsure.
You said in your affidavit:
I couldn’t talk to anyone about what was happening.
?---I’m unsure.
You didn’t say, “I couldn’t talk about it to most people, but just to a few”?---I’m unsure.
And I suggest to you the reason why you’re saying this now is because you know there are witnesses called in your case who say that you had discussions with them?---I’m unsure.
(Transcript pp 294-295.)
1191 Fourth, although Mr Ford relied on evidence of Mr Ogg, I note that Mr Ogg did not give evidence of the alleged incident involving Mr Phillips and Mr Varghese until the Fourth Ogg Affidavit. During cross-examination, Mr Ogg gave the following relevant evidence in relation to discussions he had with Mr Ford:
So you’ve spoken to him since you gave your first two affidavits in this matter, one of which was sworn on 18 May and one of which was sworn on 3 August 2018?---Yes.
Do you remember what you talked about?---We talked about things that happened to him at Inghams’, about this going to court maybe and – yes.
So did he tell you some things about what had happened to him at Inghams’?---Yes.
Things that he had seen?---Yes; we just talked about what had happened and how it wasn’t good and - - -
Where were you when you were having that discussion?---My place.
So he came over to your house to discuss – and you discussed this case when he was there?---Yes.
Do you remember when that was?---Several months ago.
Did Richard tell you about – did he tell you something about seeing Bijo Varghese and Wade Phillips in the locker room?---Yes; he has told me about that.
Okay. And did he tell you about that after he – after you finished working at Inghams’?---Yes.
Okay. Take you to paragraph 8 of your fourth affidavit, Mr Ogg, which is the one dated 13 June 2019?---Yes. I have that one.
All right. Do you see you’ve written this or you’ve stated the following:
I have seen Wade pull his pants down and show his genitals. I’ve seen Wade do this in the locker room on one occasion, when he put his genitals close to the face of another employee, Bijo.
?---What page is that? Sorry.
So it’s page 3 of your 14 June – sorry – 13 June affidavit?---Okay.
So you see that affidavit?---Yes; yes.
Page 3, paragraph 8. It’s just the second paragraph from the top?---Yes. I see it. will let you read it again?---Okay. Yes. I’ve read that.
Mr Ogg, is that something that you actually remembered, or is it something that, Richard told you, he had seen?---No, I do remember that.
Well, I put it to you - - -?---Yes.
That the first time you mentioned that incident is in your 13 June affidavit that I’ve just taken you to?---Okay.
Do you accept you hadn’t mentioned it previously in the affidavits you’ve sworn in this matter?---Yes. I’m not sure why I never mentioned it earlier, but there was a lot of thing I needed to remember; it happened a long time ago, and that’s all I can say really.
(Transcript p 444-445.)
1192 I have already found that the evidence in the Fourth Ogg Affidavit was likely contaminated by his discussions with Mr Ford. This finding is particularly applicable to Mr Ogg’s evidence in relation to this issue, as Mr Ogg specifically stated at the hearing that Mr Ford had told him about the alleged incident prior to Mr Ogg giving that affidavit.
1193 I also note that Mr Ogg gave evidence that he had seen Mr Phillips expose his testicles in the faces of both Mr Lucht and Mr Hannett at Inghams. Mr Lucht gave a statement during the workplace investigation to the effect that he had never seen anyone expose their genitals to other workers at Inghams. Mr Hannett gave evidence that he had never witnessed Mr Phillips “play pranks on people using his penis and testicles, for example, to put them near someone’s face while they were bending over” (transcript p 914 ll 39-41). In my view, having observed both Mr Lucht and Mr Hannett during the hearing, I consider it extremely unlikely that either of them would tolerate such conduct as a worker exposing his testicles in their faces, as deposed by Mr Ogg.
1194 I give Mr Ogg’s evidence in relation to this issue no weight.
1195 Fifth, I note that Mr Ly did not give evidence that Mr Phillips or anyone else engaged in this or similar conduct. Mr Ly gave evidence that Mr Ford was subjected to “genital rubbing” conduct by Mr Waldock and Mr Rafferty, with many other people around. Mr Ly was the only witness to give evidence of this nature. In my view this evidence is not relevant to Agreed Issue 1(q), which involves dissimilar conduct, and different people allegedly involved.
1196 Finally, other than Mr Bhardwaj and Mr Ogg, no witness gave evidence of Mr Phillips ever engaging in deliberately exposing his genitals, such that a tendency on the part of Mr Phillips to engage in the conduct alleged by Mr Ford could be inferred. To the extent that, after working all day in a factory, Mr Phillips may have taken a shower in a men’s locker room and then walked unclothed from the shower to his clothes to get dressed, does not in my view suggest a tendency on Mr Phillips’ part to engage in the conduct alleged by Mr Ford.
1197 Further, for reasons I have already given, I am not satisfied that there was a culture at Inghams where Mr Phillips would expose his genitals in the face of another worker, as Mr Ford alleged.
1198 On balance, the weight of credible evidence does not support Mr Ford’s claims in respect of Agreed Issue 1(q).
CONCLUSION
1199 I have examined, in detail, and carefully, the evidence before the Court.
1200 To the extent that I am persuaded that events alleged by Mr Ford did occur, I am not satisfied that they involved conduct of a sexual nature within the meaning of s 28A of the SD Act, or otherwise constituted sexual harassment within the meaning of s 28A of the SD Act.
1201 Otherwise, I am not satisfied that the conduct alleged by Mr Ford has been substantiated. I will hear the parties in respect of costs.
1202 In circumstances where I have found that the applicant has not established that any conduct constituting sexual harassment within the meaning of s 28A of the SD Act occurred, there is no need to give consideration to the appropriate remedy to be awarded, or to consider questions of vicarious liability on the part of the first respondent.
I certify that the preceding one thousand two hundrend and two (1202) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. |
Associate:
QUD 349 of 2017 | |
WADE PHILLIPS | |
Fifth Respondent: | GEORGE MOLE |
