Federal Court of Australia

Taylor v August and Pemberton Pty Ltd [2023] FCA 1313

ORDERS

THE COURT ORDERS THAT:

1.    Judgment be entered in favour of the applicant.

2.    By 4:00pm on 21 November 2023 the parties bring in short minutes of order giving effect to the judgment.

3.    In the event that the applicant presses her claim for remedies other than damages (as sought in her amended originating application):

(a)    the parties confer with a view to reaching agreement;

(b)    if no agreement is reached:

(i)    the applicant file submissions, not exceeding 5 pages, by 4:00pm on 28 November 2023;

(ii)    the respondents file and serve submissions in response, not exceeding 5 pages, by 4:00pm on 5 December 2023;

(iii)    the applicant file and serve submissions in reply, not exceeding 3 pages, by 4:00 pm on 12 December 2023; and

(iv)    unless the court otherwise orders, any claim for additional relief be determined on the papers.

4.    The respondents pay the applicant’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TABLE OF CONTENTS

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    Fiona Taylor complains that she was sexually harassed by Simon Grew over a period of about 22 months while she was employed by his company, August and Pemberton Pty Ltd t/as Grew & Co, and claims that Mr Grew victimised her after she complained. She alleges that Mr Grew’s conduct breached her contract of employment and was unlawful under the Sex Discrimination Act 1984 (Cth) (SDA) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). She seeks various forms of relief from Grew & Co and Mr Grew himself. The claims were vigorously contested and the credit of the two protagonists is squarely in issue.

The background facts

2    Nonetheless many of the facts were uncontroversial. The following account is derived from an agreed statement, the documentary evidence, and undisputed testimony.

3    Grew & Co is a small business which manufactures and sells fine jewellery. It was established in 2007 by Mr Grew, who is a jeweller, designer, the manager of the business, and the sole director of the company.

4    Ms Taylor accepted an offer of employment from Grew & Co on 30 November 2017. At the time she was employed by Larsen Jewellery. The previous day Mr Grew sent her an email stating, among other things:

I think you will be an asset to our company and I also think you will have creative opportunities and professional growth within Grew & Co that will far exceed your available potential within the structure and management of Larsen Jewellery. Often new opportunities come with the element of risk which in this case for both of us is now financial, by meeting you in the middle we both have the incentive to make the opportunity work and be profitable in the future.

Think it over, let me know how you feel. I want to make G&Co the most forward thinking and performing brand with[in] the Australian jewellery industry, it would be great to have you on board with that.

5    Ms Taylor was employed by Grew & Co from 18 January 2018 until 6 April 2022, reporting directly to Mr Grew. Ms Taylor was born on 14 September 1988, which means that when she began working for Grew & Co she was 29 and ceased when she was 34. Mr Grew is 10 years her senior.

6    The terms of her contract included those set out in an email from Mr Grew on 9 December 2017:

As we discussed your position will be full time, from Tuesday to Saturday and we have agreed to $65k + super commencing on January 18, 2018. Your role will involve managing client enquiries and project management, liaising with suppliers and diamond & gemstone sourcing as well as managing consignments. Your role will also involve working with clients as a creative representation of Grew & Co.

The title on your business cards will be “Couturier of fine jewellery” however we can work on your title within the business which will be a mix of project management and creative.

7    It was an implied term of the employment contract that Grew & Co would take reasonable care to provide her with a safe place of work.

8    Ms Taylor was educated to year 12 level. She enrolled in a Bachelor of Fine Arts at the University of New South Wales, majoring in jewellery design, but discontinued after two years. Her previous job as a “studio assistant” with Larsen Jewellery lasted about 18 months. Before that she worked in the music industry as a “booker” for bands.

9    When she started working for Grew & Co, Ms Taylor was one of six employees, all of whom reported directly to Mr Grew. Mr Grew, Ms Taylor and two other employees — Andrew Snow and Mai Vu — worked from the Sydney premises of Grew & Co at 350 George Street Sydney. Three employed jewellers worked in an off-site workshop. There was no human resources (HR) department and “no HR person” on the staff. Anyone who had an issue had to raise it directly with Mr Grew.

10    Ms Taylor was excited to join Grew & Co. She considered the culture was friendly and welcoming. She enjoyed the company of those with whom she worked. She felt that she “finally” had a boss who recognised her talents and championed them. Mr Grew told her “constantly” how valuable she was to the business and that she did “an amazing job”. He also told her she was a “superstar”. She felt like she had found her dream job.

11    Ms Taylor began as a sales consultant or, as she put it, in a “customer service sales role”. But over time she took on more responsibilities and by late 2018 she became “production manager”. Around this time, Grew & Co relocated to premises at 161 Clarence Street Sydney. From then on she shared an office with Mr Grew.

12    As Mr Grew put it, in her role as production manager Ms Taylor “fundamentally manag[ed] the entire stages of the production of jewellery within the workshop”. That involved liaising with sales staff and designers, sourcing gemstones and diamonds, creating job packets, responsibility for quality control, and, for a time, managing Grew & Co’s Instagram account. It is common ground that she performed very well. Mr Grew said she was “organised, consistent and … motivated”, and “really efficient”. He described her as “a trusted and great asset to the company”.

13    Ms Taylor and Mr Grew often worked in close proximity to each other. Their conversations were not confined to work-related matters. Mr Grew was aware that Ms Taylor was in a relationship when she started working at Grew & Co and during the course of her employment they spoke about the problems she was having in the relationship.

14    At the time Ms Taylor joined the staff of Grew & Co, Mr Grew was married. In about August 2018 he and his wife separated. He informed Ms Taylor first before telling all the other employees individually.

15    From about this time, Mr Grew gave Ms Taylor numerous gifts, which she alleges were unwelcome. Mr Grew was also generous to other members of staff, although not to the same extent.

16    Ms Taylor gave Mr Grew a birthday present in 2019 and Christmas presents in 2018 and 2019. She also organised a group gift for Mr Grew’s birthday in 2018.

17    Ms Taylor and Mr Grew often communicated by text. The text messages reproduced in these reasons appear in their original form, without correction for errors in spelling or punctuation. Many of the texts were personal in nature and in at least one of them Mr Grew praised her appearance. He also admitted to telling Ms Taylor that she had a beautiful body.

18    In January 2020 Mr Grew revealed to Ms Taylor that he had developed “feelings” for her. She was overwhelmed by the revelation. Ms Taylor made it clear to him that she was not interested in a romantic relationship with him. There was a dispute about whether she did so at the time, but for present purposes at least it does not matter.

19    The following month Ms Taylor and Mr Grew were due to take a business trip to attend an international gem and mineral exhibition (the Gem and Mineral Show) in Tucson, Arizona. Before they left Ms Taylor informed Mr Grew, via text, that she was feeling anxious about the trip and wanted to put down some boundaries.

20    In mid-March 2020, in response to the COVID-19 pandemic, Mr Grew directed all employees to work from home except for Asato Tanaka, another jeweller, and Ms Taylor. Mr Grew offered to reimburse his employees for parking costs and tolls incurred by driving into work during this time.

21    On 1 June 2020, after driving Ms Taylor home from work, Mr Grew and Ms Taylor had a conversation in which he revived the subject of his January 2020 revelation which caused Ms Taylor considerable distress.

22    Ms Taylor did not attend work from 2 June 2020 until 8 June 2020 and last attended work for Grew & Co on 7 August 2020. Psychiatrists retained for both parties to the litigation consider she has a psychiatric disorder to which, if her history is accepted, the events she described substantially contributed.

23    On 28 August 2020 Ms Taylor, through her lawyers, complained that Mr Grew had sexually harassed her. The letter generated a combative response.

24    On 23 September 2020 she lodged a complaint with the Australian Human Rights Commission (AHRC). The complaint was terminated in accordance with s 46PH(1B)(b) of the AHRC Act because the President, through her delegate, was not satisfied there were reasonable prospects of the matter being settled by conciliation.

25    Ms Taylor resigned from Grew & Co on 6 April 2022. She found other, less rewarding, work in Queensland.

Proof

26    As Ms Taylor is the moving party, she bears the onus of proof. As this is a civil case, the standard of proof is the balance of probabilities. The question of whether the standard is met and the onus discharged is informed by the nature of the cause of action, the nature of the subject-matter of the proceeding, and the gravity of the allegations: Evidence Act 1995 (Cth), s 140. Section 140 is effectively an enactment of the principle described by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2:

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.

27    In considering whether Ms Taylor’s allegations have been made out, I have applied this standard, mindful of the principle in Briginshaw.

The lay witnesses

28    Six lay witnesses gave evidence, including Ms Taylor and Mr Grew.

29    Ms Taylor was the only witness in her case. Although she had foreshadowed through her counsel that her sister, Sonia, would also be called, Sonia was not called. But the respondents made nothing of that. In particular, they did not submit that the Court should infer from her absence that nothing she could say would assist Ms Taylor’s case: see Jones v Dunkel (1959) 101 CLR 298. And I draw no such inference.

30    Mr Grew submitted that Ms Taylor was “far from a satisfactory witness”. He claimed that her evidence changed, was embellished in parts, was self-serving, and at times incredible. I put to one side the submission that the evidence was self-serving. That could be said of the evidence of any party to any proceeding. It is true that there were some inconsistencies in her accounts. But inconsistencies are not necessarily the product of dishonesty. They may be the product of faulty recollection. Ms Taylor was cross-examined at length. By and large I found her to be an impressive witness. She was never defensive, evasive or aggressive. She appeared to answer the questions honestly. While some aspects of her evidence appeared to be reconstructions of events, rather than genuine recollections, and some of her answers appeared, as the respondents submitted, rather formulaic, I do not consider that she was dissembling. She made reasonable concessions and did not appear to exaggerate her claims. There were few inconsistencies and much of her evidence was supported by contemporaneous documents.

31    Mr Grew gave evidence, together with four of his current and former employees: Andrew Snow, Asato Tanaka, Mai Vu, and Ayesha Nicholson-Black.

32    Mr Grew presented well in examination in chief. But in several respects his evidence was inconsistent and when that was pointed out to him in cross-examination he became defensive. Unlike Ms Taylor, he failed to make reasonable concessions. At times he was aggressive in his responses and often evasive. When he was obviously uncomfortable with the line of cross-examination he appeared unwilling to give direct answers to simple questions. Aspects of his account strained credibility.

33    Mr Snow came across as honest, sincere and genuine. I also formed a favourable impression of Ms Nicholson-Black and Mr Tanaka. There is no reason not to accept their evidence and Ms Taylor made no submission to this effect.

34    On the other hand, Ms Vu appeared rehearsed in examination in chief and defensive under cross-examination. She struggled to give direct answers and did not make reasonable concessions. I consider that her evidence was affected by her obvious loyalty to Mr Grew, for whom she continues to work.

The sexual harassment case

The allegations

35    Ms Taylor alleges that Mr Grew contravened s 28B(2) of the SDA by engaging in various acts constituting unwelcome conduct of a sexual nature in relation to her and/or making unwelcome sexual advances to her. The acts fall into relatively discrete categories: the provision of numerous gifts; the making of certain comments and “declarations of feelings”.

36    Mr Grew conceded that some, but by no means all, of the gifts were unsolicited. The fact that Mr Grew made some of the comments upon which Ms Taylor relies was not in dispute but Mr Grew sought to provide an innocent explanation for them. As I have already indicated, Mr Grew admitted that he was attracted to Ms Taylor and that he told her as much, but he denied that he engaged in conduct of a sexual nature, made sexual advances to her or that any of his conduct was unwelcome.

The statutory context

37    The prohibition against sexual harassment appears in Pt II Div 3 of the SDA.

38    Section 28B(2) relevantly provides that it is unlawful for one employee to sexually harass another. Ms Taylor’s pleading contains no allegation that Mr Grew was an employee of Grew & Co although that was plainly a material fact that should have been pleaded. Nevertheless, the case was defended on the basis that, if Mr Grew were found to have contravened the SDA, Grew & Co is liable. The respondents admitted as much in the statement of agreed facts. I infer that it is common ground that Mr Grew was an employee of Grew & Co as well as its sole director and manager.

39    In any case, s 28B(1) relevantly provides that it is unlawful for a person to sexually harass an employee of the person. References to a person in any Commonwealth statute include both corporations and individuals: Acts Interpretation Act 1901 (Cth), s 2C. Thus Grew & Co is a person for the purpose of s 28B(1).

40    Section 106 of the SDA renders a person vicariously liable for unlawful discrimination and sexual harassment committed by its employee or agent unless the employer took all reasonable steps to prevent conduct of that kind. It provides:

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

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

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

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

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

41    If Mr Grew was not an employee of Grew & Co, he was its agent.

42    Section 28B is a remedial provision in legislation intended to protect human rights and should therefore be broadly construed: Ewin v Vergara (No 3) [2013] FCA 1311; 307 ALR 576; 238 IR 118 (Bromberg J) at [32] (appeal dismissed: Vergara v Ewin (2014) 223 FCR 151 per North, Pagone and White JJ). Further, as Bromberg J observed in Ewin v Vergara at [37], “temporal considerations”, such as whether the conduct in question occurred during working hours or while the people in question were working, are not mentioned and the legislation was not intended to be limited by considerations of that kind.

43    “Sexual harassment” is defined in s 28A of the SDA. At all relevant times it read as follows:

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.

(2)    In this section:

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

44    In Ewin v Vergara at [27] Bromberg J explained the meaning of “unwelcome” for the purposes of s 28A:

In the context of conduct which is directed (intentionally or not) by one person to another or others, “unwelcome” simply means conduct that is disagreeable to the person to whom it was directed. In Aldridge v Booth (1988) 80 ALR 1 at 5; 15 ALD 540, Spender J described unwelcome conduct as conduct that was not solicited or invited and was regarded as undesirable or offensive by the person to whom it was directed. That understanding was adopted by Wilcox J in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 247; 85 ALR 503 at 531 (Hall) and by Mansfield J in Poniatowska v Hickinbotham [2009] FCA 680 at [289] (Poniatowska).

45    In Spencer v Dowling [1997] 2 VR 127 at 156, Hayne JA considered the meaning of “sexual advance”. His Honour observed that “[i]n ordinary usage, “advance” may mean (as the Oxford English Dictionary 2nd ed. tells us) “a personal approach, a movement towards closer acquaintance and understanding; an overture” including an amorous overture or approach. Whether or not in a particular case an approach or overture amounts to a “sexual advance” may involve difficult questions of fact and degree. Not every proposal for social contact will be a sexual advance.

46    As Bell P and Payne JA observed of the phrase “other unwelcome conduct of a sexual nature” in the analogue of s 28A in the Anti-Discrimination Act 1977 (NSW), it is “of broad import” and “should not be read down or confined by limits or restrictions which do not appear in the statute”: Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403 at [97]. Over a decade earlier, in Poniatowska v Hickinbotham [2009] FCA 680 at [294], Mansfield J acknowledged that s 28A(1)(b) and (2) were intended to extend the circumstances of sexual harassment beyond the scope of s 28A(1)(a) but said that he thought “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”. That said, his Honour added that it is neither necessary nor appropriate to set the outer bounds of “conduct of a sexual nature”. And in Vitality Works at [105] Bell P and Payne J agreed.

47    As Perram J observed in Hughes (t/as Beesley and Hughes Lawyers) v Hill (2020) 277 FCR 511 at [21]–[25] (Collier and Reeves JJ agreeing at [1] and [2] respectively), there are essentially three elements to the definition in s 28A. First, the Court is required to determine whether any of the forms of conduct mentioned in subs (1) have occurred. Obviously enough, that is a question of fact. Second, if such conduct occurred, it must have been unwelcome to the person harassed, whom I shall call the complainant. That, too, is a question of fact. But it is a subjective question, the answer to which turns only on the attitude of the complainant at the time the conduct took place. Third, even if these two elements are satisfied, the ambit of the section is limited by an objective criterion, namely that the unwelcome conduct occurred in circumstances in which a reasonable person would have anticipated the possibility that the complainant would be “offended, humiliated or intimidated” by it.

48    In other words, it is not enough that the conduct was unwelcome. Nor is it enough that the complainant was offended, humiliated or intimidated by it. If the circumstances were such that a reasonable person would not have anticipated that was a possibility, the definition is not satisfied and the case must fail.

49    In Hughes at [26], Perram J explained that for the purposes of determining whether the objective criterion is satisfied:

[T]he 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 … The canvas is broad.

50    The intention of the alleged harasser is entirely irrelevant. Bell P and Payne JA remarked in Vitality Works at [98]:

As to the subject matter, scope and purpose of the Anti-Discrimination Act, it cannot seriously be suggested that the subjective intention of the alleged perpetrator has anything to do with proof of the statutory prohibition. If it were otherwise, an important societal norm would rest on the subjective opinions of the putative sexual harasser. In effect, the greater the subjective tolerance of sexually inappropriate conduct on the part of the sexual harasser, the more difficult sexual harassment would be to prove. That conclusion needs only to be stated to be rejected.

51    Moreover “conduct of a sexual nature” may be explicit or implicit, as the Court of Appeal recognised in Vitality Works. And conduct which, when considered in isolation, appears to have no sexual connotation may still amount to “conduct of a sexual nature” or, for that matter, a “sexual advance”. The conduct in question must always be assessed in its context: see, for example, Kraus v Menzie [2012] FCA 3 at [45] (Mansfield J). Indeed, as Bell P and Payne JA said in Vitality Works at [101], in determining whether particular conduct meets the description of “other unwelcome conduct of a sexual nature”, “context is everything”. In Kraus, with respect to the presentation of a gift by an employer to an employee, Mansfield J concluded that, having regard to the nature of the gift (a jacket) and the fact that “the occasion took place overtly”, his Honour was not persuaded that the conduct had “sexual undertones”. He acknowledged, however, that:

The conclusion would or might be different if there were repeated unsolicited gifts, which in fact were unwelcome, even if the gifts were not patently sexual in nature, as their character may be determined from all the circumstances.

52    I respectfully agree with the observation of McCallum JA in Vitality Works at [125] that:

The sexualisation of women in the workplace often isn’t [explicit]. Innuendo, insulation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome … The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters.

The same must be said of the identical expression in s 28A of the SDA.

53    Furthermore, the failure to make a contemporaneous complaint or to inform the alleged harasser at the time that the conduct in question is unwelcome does not (at least without more) signify the converse.

The evidence

Mr Grew’s feelings for Ms Taylor

54    It is common ground that in early January 2020 Mr Grew declared his feelings for Ms Taylor. I will come to that in due course. But that was not a sudden development.

55    In his evidence in chief Mr Grew testified that he started to develop some feelings for Ms Taylor over December 2019. In cross-examination, however, he clarified that that was the time he realised he had feelings for her. The two are not necessarily synonymous.

56    It is entirely possible, if not likely, that Mr Grew’s feelings for Ms Taylor had developed earlier, perhaps much earlier, whether or not he recognised it at the time. In cross-examination, he accepted that Ms Taylor was an attractive woman, describing her as “a pretty person”. They worked in close proximity to each other and, it seems, quickly developed a close working relationship that was pleasurable to both of them, at least for a period of time. They discussed all manner of things during working hours, some work-related, some not.

57    It was put to Ms Taylor in cross-examination that it would not be unusual for her to seek Mr Grew’s attention by touching his shoulder or squeezing his arm. She accepted that she would tap him on the shoulder but denied squeezing his arm. In cross-examination Ms Taylor revealed that, when she would place finished products on her hand to see how they looked, Mr Grew would come over and touch her hand, without being invited to do so. Before she knew he had feelings for her, she had had no difficulty with that. Afterwards, however, it made her feel uncomfortable.

58    On 10 August 2019, four months before Mr Grew says he started to develop feelings for Ms Taylor, Ms Vu sent the following text to Ms Taylor:

59    Ms Taylor agreed she would not tell Mr Grew.

60    Ms Vu conceded in cross-examination that she believed Mr Grew had feelings for Ms Taylor at this time. While this matter was not explored further, for reasons which will become apparent I have no doubt that, by this time, or indeed earlier than then, Mr Grew had feelings for Ms Taylor in that he was attracted to her and that some of the gifts were, at least in part, an expression of those feelings.

The gifts

The allegations

61    Ms Taylor alleged that between September 2018 and March 2020 Mr Grew gave Ms Taylor a total of 19 gifts, which were both unsolicited and unwelcome:

 (1)    a quilted black Chanel coin purse;

(2)    a platinum ring with emeralds and diamonds (emerald and diamond platinum ring);

(3)    an 18-carat white gold bezel set (Hydra) ring incorporating a sapphire she had purchased (Hydra ring);

 (4)    a 14-carat gold six stone diamond necklace (six stone diamond necklace);

(5)    a small round cut peach sapphire he purchased at an overseas gem fair (peach sapphire);

(6)    a 14-carat diamond cluster necklace incorporating the peach sapphire (diamond cluster necklace);

 (7)    a jade bangle;

(8)    $2,000 in cash which he described as an early Christmas bonus to assist with her savings for purchasing a property;

(9)    a massage at a local shop during work hours;

(10)    a pair of diamond “Gemini” stud earrings (Gemini stud earrings);

(11)    a silver pinkie signet ring (silver signet ring);

(12)    a black sequinned Michael Kors bomber jacket, which retailed for $548 (Michael Kors bomber jacket);

(13)    a $200 MECCA gift card (MECCA gift card);

(14)    a 14-carat white gold hammered band ring (white gold hammered band ring);

(15)    a plain 5 mm silver ring (5 mm silver ring);

(16)    a plain 10 mm silver ring (10 mm silver ring);

(17)    a pair of Stuller gold hoop earrings (Stuller gold earrings);

(18)    a 14-carat gold pinkie signet ring (gold signet ring); and

(19)    a channel set diamond ring.

The extent of the dispute

62    The respondents accepted that the Chanel coin purse, the jade bangle, and the silver signet ring were gifts but put in issue the allegations that Mr Grew gave Ms Taylor any of the following items: the gold signet ring; the channel set diamond ring (a stock item he had seen her wear from time to time); the white gold hammered band ring; the 5 mm silver ring; and the 10 mm silver ring.

63    The respondents accepted that Mr Grew gave the other items to Ms Taylor but denied that they were unsolicited and/or gifts.

64    The respondents also disputed that statements allegedly made, and text messages sent to, Ms Taylor, praising her and her appearance were unsolicited.

65    In the event that the items and remarks are found to have been unsolicited, the remaining questions are first, whether the conduct was “unwelcome conduct”, “conduct of a sexual nature”, and/or a “sexual advance”; second, whether the conduct took place in circumstances in which, having regard to all the circumstances, a reasonable person would have anticipated the possibility that Ms Taylor would be “offended, humiliated or intimidated”; and third, whether Mr Grew contravened s 28B(2) of the SDA.

66    Ms Taylor gave evidence to support the allegations relating to all the alleged gifts except for the channel set diamond ring.

67    Despite the absence from Ms Taylor’s evidence of any mention of Mr Grew giving her a channel set diamond ring, it was put to Mr Grew in cross-examination (without objection) that, having seen her wear the ring, he told her she could have it if she liked. Mr Grew rejected the proposition. Consequently, there is no evidence to support the allegation in the pleading that the channel set diamond ring was a gift.

68    In evidence, Mr Grew agreed that he gave Ms Taylor all these things, except for the gold signet ring, the channel set diamond ring, the white gold hammered band ring, the 5 mm silver ring and the 10 mm silver ring.

69    He also agreed that many of these items were gifts. He sought to explain them, however, by reference to a reciprocal culture of generosity at the workplace and by pointing to gifts he had made to other employees as well. He also claimed that Ms Taylor had asked for many of them.

2018

The Chanel coin purse

70    The first gift Ms Taylor received from Mr Grew was the Chanel coin purse. She testified that one day in September 2018 Mr Grew approached her in the office holding a Chanel bag (which I take to be a cloth bag featuring the Chanel logo which contained the purse), saying: “Hey. This is for you. Happy birthday. You bring so much value to the company and this is just a token of that”. Ms Taylor said that she was “quite shocked to see a Chanel bag”, “caught off guard”, and “quite put on the spot because it seemed quite extravagant”. She said it made her feel “a bit overwhelmed” but she accepted the gift because she did not want to seem rude or ungrateful. In cross-examination she rejected the proposition that, by accepting the purse, thanking Mr Grew and holding on to it, she welcomed its receipt.

71    In examination in chief Mr Grew was asked whether he was able to provide any context for the gift. This was his answer:

I have a – a leather business card holder that I used and she mentioned that she really liked it, and it was around her birthday, I was looking up leather business card holders for women, and came across this one which is on – from memory, it was on eBay, but it could have been on, like, Gumtree or some classified thing. And it was located in the city, and it was about $130 or something, and I went to pick it up from a lady that lived in an apartment building on the corner of Kent Street and King Street, there’s a couple of apartment buildings there. She was selling a number of, kind of, designer label things of various types.

72    He went on to say that he gave her the purse as a birthday gift. He was asked whether she said anything at the time. His reply was not entirely responsive. It was that she was “very happy” and “really grateful”. He said she did not display any discomfort or embarrassment.

The emerald and diamond platinum ring

73    This was a ring consisting of a platinum band, with a large emerald bordered by two smaller emeralds and two diamonds.

74    Ms Taylor gave evidence that, in around September 2018, Mr Grew asked her to start “designing pieces and creating some layouts for pieces”. She came across some emeralds in the safe at work and created a layout which appealed to her. She then approached Mr Grew and asked whether it would be “okay” if she created a ring for herself. He readily agreed. Mr Grew’s evidence was to the same effect.

75    She testified that he then informed her “[w]e do it at a wholesale cost for staff”. She said she asked him to get back to her with “some pricing” but, while he agreed to do so, he never did.

76    After the ring was made, Mr Grew approached her and asked to see the ring on her hand. She obliged and inquired: “How much do I owe you for this?” Mr Grew replied: “I don’t want any payment. It’s a gift. You bring so much value to the company”. Ms Taylor was “quite shocked and overwhelmed” as this was the second gift she had received from Mr Grew within a couple of weeks. Again, she thanked him because she did not want to offend him or appear ungrateful. It was put to her in cross-examination that she did not indicate any hesitation in accepting the gift. She rejected the proposition. She said she paused to think about it before thanking him.

77    Ms Taylor estimated that the value of the ring was around $4,000 to $5,000 and that the cost price was around $1,500 to $2,000. In cross-examination, however, it was put to her that the materials were relatively inexpensive (about $390). Ms Taylor did not recall whether Mr Grew had told her that the emeralds were “old stock”. She said she did not know whether the cost of the platinum would have been $180, the main emerald $90 and the small emeralds $30 each, as suggested, and she disagreed with the proposition that the diamonds would have cost $30 each.

78    Mr Grew was not invited to comment on much of Ms Taylor’s evidence. Mr Grew said that he did not recall asking to be paid or receiving any offer of payment. Importantly, however, he agreed that the ring was a gift.

79    Otherwise, his evidence was broadly, though not entirely, consistent with what was foreshadowed by the cross-examination of Ms Taylor. He testified that the two diamonds and two smaller emeralds were worth around $30, that the larger emerald was worth around $100 and the platinum would cost around $180. He did not provide an estimate of the cost of labour or an indication of its retail value. Indeed, the same is true in relation to all the jewellery items in question.

80    When asked why he did not seek payment for the ring he said:

The stone had been sitting in the safe for some time. It hadn’t been used. I didn’t really see it being used in the foreseeable future. It was of fairly little consequence to me and if it was an item that Ms Taylor in this instance or a member of staff wanted, from my point of view it’s an item of the company which also advertises the company. It’s beneficial for the company for them to be wearing it, and I would prefer that they asked me about these kind of items if it’s something that they want because then I know that they’re not stealing, and these sort of items are overall fairly inconsequential.

81    In cross-examination Ms Taylor accepted that in around June 2020 she asked Mr Grew to remake the ring in yellow gold. She did not recall whether Mr Grew said that he would take the old platinum metal in exchange for the yellow gold such that no payment was required. Mr Grew testified that he told her that they could remake the rings and then exchange the original metal in lieu of payment.

The Hydra ring

82    Ms Taylor said she received the ring in about September or October 2018 in the following circumstances.

83    Ms Taylor had designed a ring for the Grew & Co stock designs, called the Hydra, and she had also recently purchased a sapphire for herself. She asked Mr Grew whether it would be alright if she made (by which she meant designed) a Hydra for herself. He readily agreed. Again she asked him to “get back to [her] with pricing”. Again he did not.

84    After the ring was made, Mr Grew approached her and asked to see it on her hand. She asked how much she owed him. He replied that he did not want any payment and she should “consider it a gift for doing such good work”. She testified that she felt “uncomfortable and overwhelmed” as “it started to feel a little bit like special treatment at that point”. As she had “never been in a situation like that before”, she “didn’t really know what to do” and “didn’t want to jeopardise [her] working relationship with him”. In cross-examination she maintained that she did not know “how [Mr Grew] would have reacted” such that she was “scared” he would react in a way that would be “awkward and uncomfortable”. She did accept however that he had not done anything to give her that indication.

85    Mr Grew testified that there was “never any request for payment and never any offer made” in relation to this ring. He said that he did not request payment because it was “around the time of [Ms Taylor’s] birthday”, was made using a stone she had purchased; and because the “overall costs of the materials [was] fairly inconsequential”. He estimated that the white gold was worth around $180, the two baguette diamonds around $60 each, the two trillion cut diamonds around $120 or $140 for both of them (that is to say the materials cost a total of $420 to $440). He said that, at the time Ms Taylor was an employee, his practice was not to charge staff for making items of jewellery.

The white gold hammered band ring and the 5 mm and 10 mm silver rings

86    Ms Taylor testified that in December 2018 she received from Mr Grew a white gold hammered band ring, a 5 mm silver ring and a 10 mm silver ring. She said that she wanted to hide some recent tattoos from her parents and mentioned to Mr Grew that she was worried about her father seeing them. After the conversation they exchanged text messages that indicate that Mr Grew told her that Mr Tanaka could “knock up some wide silver ones before Christmas”. She testified that “some time after these text messages” they “discussed payment at a wholesale cost in the office”.

87    Ms Taylor testified that, after the rings were made Mr Grew approached her and asked to “see them on”. She obliged. She asked him how much they would cost and he told her not to worry about payment. She adhered to this evidence in cross-examination and denied that it was merely an assumption on her part that Mr Grew “gifted” her the rings.

88    Mr Grew testified that, after the exchange of texts on 16 December, they had no further conversations about the rings. Nonetheless, he admitted it was “likely” that he would not have required Ms Taylor to pay for them.

89    Mr Tanaka testified that he made “a couple of silver rings” for Ms Taylor to cover up some tattoos on her hand. He said he did not have a discussion with Mr Grew about the making of those rings; rather, Ms Taylor asked him to “make her some rings to hide her tattoos”. He said that “straight after” he made the rings he gave them to Ms Taylor, who was “really happy” to receive them. In cross-examination he disagreed with the proposition that his recollection might be wrong.

90    Mr Tanaka had a recollection of the 14-carat white gold hammered band ring but did not recall that it was included in the same job packet.

2019

The six stone diamond necklace

91    On 28 March 2019, Ms Taylor sent the following text to Mr Grew:

“Hey I still need to buy a chain for my little diamond necklace right???

92    Ms Taylor testified that she had designed a “14-carat yellow gold diamond necklace” that she “wanted to get made up at a wholesale cost” and this text message referred to the “chain that was to go with it”. She explained that in early 2019 she had approached Mr Grew and told him that she would like to make a delicate diamond necklace for herself “at a wholesale cost”. She said she asked him to “let [her] know how much that will come to” to which he replied: “Of course”.

93    On 18 April 2019 Mr Grew informed Ms Taylor, via text, that he had finished her chain. In the text conversation that followed, she wrote: “Let me know what I owe you for the necklaces!”. She testified that she used the plural “necklaces” because she was also referring to another necklace that had “joined the production line while the first necklace was being made”, namely, the diamond cluster necklace (discussed below).

94    In cross-examination Ms Taylor accepted that Mr Grew obtained the chain after she had indicated she needed one and after she asked him to obtain one from the supplier.

95    Mr Grew testified that he did not request payment for the six stone diamond necklace or the diamond cluster necklace because “they were for staff and items that Fiona indicated that she wanted” and he was “happy to offer items to staff members”.

96    He estimated the value of the six small diamonds was about $7 to $15 each, the chain $60 and the housings that hold the diamonds around $18 in toto, making the total cost of the materials $120 to $168.

The peach sapphire and the diamond cluster necklace

97    In December 2018 Ms Taylor gave Mr Grew “a session with [her] healer” as a Christmas present. On 29 December 2018, presumably in response to an inquiry from Mr Grew about how she was feeling, Ms Taylor informed Mr Grew that she was feeling fine and that her “healer” told her she needed an orange stone like carnelian (a semiprecious stone) and she should make a necklace to wear for “protection”. He replied: “Carnelians cool. What do you need protection from?”. Ms Taylor answered that she had “an entity attached to [her] from [her] brother”, who was suffering from depression, which the healer “cleared” but that the healer told her that her throat was her “creative self-expression” and it needed to be kept open and protected. Mr Grew responded: “Wow, ok well better [get] that sorted out pronto”. In cross-examination she said that she shared this with Mr Grew because they “had developed a nice friendship, and [they] would often talk about what [they] did on the weekend”.

98    Ms Taylor testified that, after returning from a gem and mineral fair overseas, Mr Grew “presented” her with a round peach sapphire. Ms Taylor recalled that he approached her and said:

I found a stone for you overseas at the gem fair. I would really like you to make this up into a necklace. I know your healer told you [that] you needed an orange stone.

99    Ms Taylor testified that she was “quite shocked” that he had remembered their conversation and that he had “personally selected a stone” for her. She said that she did not want to “seem ungrateful because “he ha[d] gone out of his way to get it for [her]” so she thanked him. She testified that in comparison to carnelian, the stone she mentioned in their text message exchange on 29 December 2018, a sapphire is “much more desirable” and a “more expensive and hardwearing precious stone”.

100    On 9 May 2019, Mr Grew sent her this text message:

Hey also about your pendants, I dont want any money for them I want you to have them. I appreciate everything you do and maybe it just a small sign of that. I wanted to tell you but haven’t had the chance. Enjoy your break, it sounds amazing[.]

101    She replied:

Aww man, thank you so much! I had every intention to pay for them but that’s really amazing of you, thank you[.]

102    Ms Taylor testified that she “felt a little awkward”, “uncomfortable” and “overwhelmed at the same time” as “it was definitely starting to feel like special treatment” since they had “got into a weird cycle” and “a pattern of behaviour” of “crossing boundaries”. She estimated that the sapphire would have cost “a couple of hundred dollars” and that, once made up, the necklace could have cost upwards of $2,500.

103    In cross-examination she accepted that, in her text, she was showing her appreciation, exhibited no reluctance in accepting the necklaces as gifts, and that she did not insist on paying. She also agreed that she did not return the necklaces at any stage. In re-examination she maintained that she felt “uncomfortable and a bit awkward”.

104    Mr Grew confirmed in his evidence that he had bought the stone at a jewellery fair and that he “gifted” the necklace to Ms Taylor. He estimated the cost of the stone at between $100 and $200, with the chain costing around $60 and the gold holding the stones at about $90 to $100. He said that Ms Taylor had added other stones on each side but he was unable to recall the value of them.

105    He testified that he did not request payment for the stone because “Ms Taylor intended it for herself” and the stone was “part of a parcel of stones that [he] had purchased” and the value was “fairly inconsequential” from his point of view. He said that Ms Taylor had seen the stone and liked it. He was not asked why he did not request payment for the other components of the necklace.

106    In cross-examination Mr Grew accepted that Ms Taylor had not asked for a sapphire, that carnelian was “a much cheaper stone”, and that she had not asked him to “get anything for free”. He conceded that he “took it upon [himself] to … gift [it] to Ms Taylor”. Despite this, he maintained that it was not inaccurate to say (as pleaded in para 9(f) of the defence) that the gift was unsolicited. He claimed that the sapphire was not unsolicited because she had specifically asked him to find one in a conversation they had before he attended the fair.

The jade bangle

107    On 2 July 2019 Ms Taylor received a jade bangle from Mr Grew. As I mentioned earlier, it is an agreed fact that this was a gift.

108    Ms Taylor gave the following account of the circumstances in which she received the gift.

109    Mr Grew came into their shared office, shut the door and told her that he had a jade bangle for her that he acquired at an overseas gem fair. He said to her, “jade is all about luck, you should look up the properties of it”. She recalled that at the time she was “quite caught off guard”. The gift was unexpected, especially since it was not something she would even like. Nonetheless, she thanked him because she did not want to seem rude or ungrateful.

110    At short time later, Mr Grew’s ex-wife, Gabrielle, walked into the office, saw the bangle, and told her that Mr Grew had given her “that same bangle”. Ms Taylor recalled feeling “extremely uncomfortable” and “extremely awkward”. Ms Taylor spoke to Mr Grew about her conversation with Gabrielle and testified that he seemed surprised. While she could not remember exactly what he said, her impression was that he seemed “caught out”.

111    In cross-examination, Ms Taylor was referred to a text she sent later that day to Mr Grew:

Hey, thanks so much for my jade bracelet! It’s very thoughtful.

112    She accepted that the unicorn emoji was her way of showing appreciation to Mr Grew for the gift.

113    When it was put to her that he never said that he got the bangle for her she did not agree. She said that she did not recall seeing a pouch with a jade bangle in it on Mr Grew’s desk for five months, denied that she had told Mr Grew she was feeling down that day, and that he said “[h]ere you go. You can have this” when he gave her the bangle. She accepted that she did not attempt to refuse the bangle and did not return it at any point.

114    This was Mr Grew’s account.

115    At an international gem fair in Hong Kong in February 2019 he purchased a number of stones from a supplier who he had worked with over the years. As this occurred around the time of Chinese New Year, the supplier’s wife gave him the jade bangle and explained that it was to bring luck and offer protection.

116    On the day he gave the bangle to Ms Taylor, she had been telling him that she was “feeling exhausted” and had “low vibrational energy”. He recalled the conversation he had in February 2019 and showed Ms Taylor the bangle, explaining that it was “meant to absorb all the negative energy”. He recalled that she was grateful and he told her that she could have it. He testified that their later text conversation followed on from their conversation in which he told her to look into the properties of jade because “it sounded similar to what she was saying”.

117    He testified that he had previously bought a lavender jade bangle for Gabrielle in around 2007, that he had not had a conversation with Ms Taylor about that gift, and that Ms Taylor did not tell him about a conversation she had with Gabrielle about hers. He maintained this position in cross-examination.

$2000 cash

118    In early September 2019, in conversation with Mr Grew in the office, Ms Taylor expressed frustration about the fact that she attended several auctions and “it seemed as though [she] needed to save about $25,000 more to be in with a chance for the type of apartment [she] would like to buy”. She said that Mr Grew replied in words to the following effect: “Yes, that’s really difficult. I’d like to give you some money towards your savings for your first property”. She said she declined, saying “No. That’s not your problem”.

119    In his evidence Mr Grew said he had had a conversation with Ms Taylor in which she showed him the types of apartments she could afford to buy and those she would like to buy but would require an increase in her deposit by $25,000.

120    After that conversation, in about the middle of the month, Mr Grew raised the subject again in a text message. Again, Ms Taylor pushed back. This is the contemporaneous exchange:

MR GREW:    I’ll give you something towards that extra that you need

MS TAYLOR:    Woah. No way!

    You have so much going on as it is!

MR GREW:    I want to see you achieve your goal

MS TAYLOR:    I really appreciate that, but it’s so not your problem!

MR GREW:    Take it as a sign of appreciation for who you are and everything you do[.]

121    The next day Mr Grew came into the office with an envelope containing $2,000. He insisted she take it. She said she could not accept it. He replied: “Consider it an early Christmas bonus”. Ms Taylor testified that in response she thought she said something like: “If it’s a Christmas bonus then okay, thank you”. She said she was “a bit tired of saying no” and felt like she had to accept it as she did not want to seem rude or ungrateful. When asked about whether she had any concerns about her employment at Grew & Co at this time, she answered:

I was definitely starting to feel anxious. I felt kind of trapped. I didn’t know how to – well, really, what to do. I – he always presented it in a way where I couldn’t say no or it would be quite rude to say no. So, yes, I felt like I was in a really difficult position, that I had to placate my boss to keep my job.

122    Mr Grew confirmed in his evidence that he gave her $2,000. He said “she was really grateful” and did not indicate any hesitation in accepting the money. He recalled encouraging her to do her best to achieve her goal.

123    In cross-examination Ms Taylor admitted that she did not return any of the money at any stage. She also accepted that there was nothing inherently improbable about Mr Grew wanting to reward her for doing a good job when she was, as she believed herself, doing a good job.

124    Later that year, Ms Taylor also received a Christmas bonus of $1,000.

125    Mr Grew gave evidence about giving cash to other employees, a subject I deal with below.

The massage

126    Ms Taylor testified that, on 6 September 2019, following a conversation with Mr Grew about a colleague and at a time when she felt “quite stressed out at work”, he “randomly” called to say he had booked a massage for her. He told her to take some cash from the envelope in his “workshop box”. She thanked him. She said she felt “a bit shocked” because it seemed to come out of nowhere. Since he had already made the booking, she felt obliged to go.

127    Mr Grew then sent her a text message with the name of the masseuse, the address and phone numbers of the business, directions about how to find it, and a photograph of the entrance. Ms Taylor replied: “That’s very thoughtful, thank you!!!” She took the money and attended the appointment. Later that day Ms Taylor sent Mr Grew a text message saying: “I fully look like I’ve had a massage hah” and “[s]he’s was super cute! I needed that- thanks again!”

128    It was put to Ms Taylor in cross-examination that she had had a telephone conversation with Mr Grew in which she told him that she needed to leave work early because she was getting “neck and jaw tightening” as a result of “a situation regarding a colleague” that had arisen at work. She accepted that her text message reply reflected that she was grateful for the massage. But she explained that when she wrote that she “needed” the massage, she did not mean that “he had to provide it for [her]”. In re-examination, she said that she felt “a bit weirded out and uncomfortable”, despite what she had said in the text message.

129    If Mr Grew’s evidence is to be accepted, his call was not, or at least not entirely, “random”. On his account, earlier that day Ms Taylor had been “venting” about “the frustration that she was feeling from [a] colleague”, and that she told him it had caused her neck and jaw pain. He said she mentioned that she might leave work early. He said that put him in a difficult position because he was moving house and could not lock up the store himself. In the hope that it might alleviate her symptoms, he said he booked her in for a half hour massage (as he recalled it) at a place only a block away from the store and told her to take the money out of petty cash.

130    It is common ground that at no time did Ms Taylor communicate to Mr Grew that she felt any embarrassment or discomfort by him paying for a massage.

131    Mr Grew’s unchallenged evidence was that he had suggested to another employee that she see a chiropractor during business hours because she could not move her neck and paid for the consultation after she told him she was unable to afford it. He paid for three-month gym memberships for Mr Tanaka and Mr Snow who were experiencing “difficult” times and he believed it would be good for both of them to “have an outlet”. And during the COVID-19 lockdown he paid for four visits to a psychologist for Ms Nicholson-Black, who was in Melbourne away from work and feeling “quite isolated”.

132    While he accepted that a massage could be “a personal thing”, Mr Grew rejected the suggestion put to him in cross-examination that the massage was “simply [his] way of showing his affection towards Ms Taylor”.

The Gemini stud earrings

133    The Gemini stud earrings were a stock item which Grew & Co sold to customers. They were earrings consisting of two small diamonds positioned side by side. Mr Grew estimated their “cost value” at around $200.

134    Ms Taylor testified that in or around November 2019 she and Ms Vu would chat about how they quite liked “these new earrings that had come into stock” and that “Mr Grew knew this”. One day he presented them with a pair each and said something like, “here’s a pair of Gemini studs for each of you”. She testified that she was “shocked” as it was “out of the blue” and thanked him because Ms Vu was there.

135    Ms Taylor testified that she had a conversation with Mr Grew later that day in which she asked him how much the earrings cost. She recalled that he replied: “I don’t want any payment for them”. Again she felt “shocked”. To avoid appearing ungrateful, she thanked him.

136    Later, Ms Vu asked Ms Taylor whether Mr Grew had asked her to pay for the earrings. She recalled that Ms Vu told her that he requested “around $200 cash for [hers]”. She testified that she felt “extremely awkward” because Ms Vu “seemed quite frustrated” or “even jealous” and it was “clear” that Ms Taylor was receiving special treatment. In cross-examination she accepted that after this conversation she knew the cost price for the earrings and did not attempt to pay Mr Grew for the earrings or return them.

137    In cross-examination Ms Taylor’s attention was drawn to a text message she sent to Mr Grew on 20 November 2019 in which she wrote: “ThAaaaank you for the studs!!!” followed by a unicorn emoji. She accepted that this was an indication of her “appreciation and gratitude” at the time.

138    In her evidence in chief Ms Vu denied that she was there when Mr Grew presented Ms Taylor with her earrings. She said she became aware of the gift when she saw Ms Taylor wearing them. She decided she wanted a pair too so asked Ms Taylor how much she paid for hers. Ms Taylor told her that she did not pay for them; Mr Grew gave them to her. Ms Vu said she placed an order for a rose gold pair and paid Mr Grew $280 for them. She was not cross-examined on this evidence.

139    On 28 November 2019 Mr Grew sent Ms Taylor a text in which he wrote:

Hey I didn’t get to see your Gemini earrings on. Can you wear them tmw? Unless your planning on wearing something else that is[.]

140    Ms Taylor replied::

Haha sure! I love them thank you!!

141    Ms Taylor denied that this conversation occurred because she had asked to pick another pair of earrings since her pair was mismatched.

142    Mr Grew’s account was as follows.

143    Ms Taylor tried on a pair of the Gemini stud earrings. She told him she loved them and that she really wanted a pair of diamond earrings. Not long afterwards, he was working on several pairs of the earrings in a mixture of coloured golds. When he finished them, he offered a white gold pair to Ms Taylor and told her that, if she wanted them, she could have them. He said he gave Ms Vu a rose gold pair at the same time (“she wanted a rose gold pair”). He added that he offered to give them to her but she insisted on paying. When asked in chief why he did not request payment from Ms Taylor he replied:

[I]t’s not a huge issue for me. From my personal point of view I think that – from an employment point of view I get better results from people by being good to them and if staff or Ms Taylor or anybody else wants to wear an item that we make, more often than not the value is fairly insignificant in the overall scheme. So I’m happy for them to have it.

144    In cross-examination, after initially maintaining that the earrings were solicited because “she told [him] that she wanted a pair”, Mr Grew accepted that he approached Ms Taylor with the Gemini stud earrings and “gave them to her as a gift”; that she did not ask him to give them to her; that he volunteered them; and that his conduct in making and offering of the earrings to Ms Taylor was unsolicited.

The silver signet ring

145    It is an agreed fact that in about November or December 2019 Mr Grew gifted Ms Taylor a silver signet ring.

146    Ms Taylor’s account was that she was sitting in her office with Mr Grew when “out of the blue” he said to her: “Hey, I found this silver signet in the safe. Can you try it on?” Ms Taylor obliged and, when he saw that it fit, he replied: “You can keep this as a gift”. She felt “a bit awkward” and “a bit shocked” as the gift “came out of nowhere”. Nevertheless, she thanked him. In cross-examination she accepted that she did not indicate to Mr Grew that the gift was unwanted and did not return it at any time.

147    Mr Grew did not dispute the substance of the conversation as recounted by Ms Taylor and his evidence was essentially consistent with it. His explanation was that he had discussed with Ms Taylor incorporating signet rings into Grew & Co’s inventory and remembered that he had a “silver sample” that had been sitting in the safe for around 12 years. He said that at the time he wondered whether the size of a signet ring would be comfortable on a woman’s hand and asked Ms Taylor whether, if he sized the ring down, she would wear it and give him feedback on how it felt. He recalled that she later told him that it fit well and he told her that she could keep it as it was sized to fit her. He said that silver is “pretty inexpensive”. He estimated that the cost of the material “might be somewhere around $60”.

Michael Kors bomber jacket

148    Mr Grew purchased this gift in early December 2019.

149    December 2019, it will be recalled, was the time Mr Grew said he first realised he had developed feelings for Ms Taylor. The parcel containing the jacket arrived in the store on 6 December.

150    Mr Grew said that he paid $296.65 for the jacket and produced a receipt to support his evidence. While the receipt appears to indicate that the price was in fact $380.93 for the jacket alone (that is, excluding shipping), nothing was made of the apparent discrepancy.

151    Ms Taylor testified that when the package arrived she “felt a bit anxious”. She sent a text message to Mr Grew saying “Ps, can I take the box home” and later “how can I not be curious”. She accepted, in cross-examination, that this reflected that she was excited to open the present.

152    On 10 December 2019 he gave her the gift. She told him that she would prefer to take it home to open it. Ms Taylor testified that “it felt really personal” for him to have bought her clothing and that he had “obviously … assessed [her] body in some way and purchased an item for it”. She felt like they “had crossed a boundary at this point” and this made her feel “really uncomfortable”.

153    Her evidence was supported by a series of text messages she sent to a friend (Leanne) that evening:

154    Similarly, in a text to her sister, Sonia, she wrote of the jacket:

No, this is where it gets weird. Simon got it for me for xmas…

And I didn’t know if I should keep it or not

It’s Michael kors[.]

155    In her reply Sonia agreed it was weird. Ms Taylor also texted her saying:

Buying clothing is super person so o was slightly weirded out about it but being a bomber jacket I was like wel he just knows me well kinda thing. Don’t wanna look into it too much. Plus I think he did it Cos I mentioned getting him something but mai and I bought his a joint gift which is a backpack…

156    Ms Taylor explained that “it was an uncomfortable thing to look deeper into because [she] had to continue to work with Mr Grew in close quarters” and that “it was easier to kind of try to ignore the meaning behind it”.

157    Later that evening, she sent a text message to Mr Grew that said “[s]o, I love it” and “[t]hank you so much! Very cool”. In cross-examination, she accepted that this message indicated that she had considered her options and had decided to keep the gift. She said that she sent this message because she did not want to “acknowledge it at the office” and did not “want to seem ungrateful”. When it was put to her that this message was unprompted, unsolicited and that she reached out to Mr Grew, she maintained that she sent him this message because she was “worried” about appearing rude or offending him.

158    The next day Mr Grew closed the door of their shared office and asked her to try the jacket on in front of him. When “he saw that it was a bit fitted” he “suggested that we go up a size”. She then “awkwardly said yes”.

159    Mr Grew testified that the day after she took the jacket home, Ms Taylor told him that she loved it but thought it was too small, put the jacket on and asked for his opinion, and then asked him to exchange it for another size. He denied asking Ms Taylor to try the jacket on for him and denied closing the door to their office during this conversation. He said that Ms Taylor did not indicate any discomfort or embarrassment by the receipt of this gift.

160    In cross-examination he denied that in late 2018 he had a conversation with Ms Taylor about buying a bomber jacket for his wife. Mr Grew testified that Ms Taylor had mentioned in October 2019 that she wanted to get a sequinned bomber jacket (a proposition Ms Taylor denied in cross-examination) and that he bought it for her after she told him that she had bought him a Christmas present.

The MECCA gift card

161    The gift card was for $200. MECCA is a retailer of numerous brands of beauty and personal care products for men and women. Mr Grew gave Ms Taylor the gift card at the end of December 2019, after Christmas. It is common ground that he had purchased it for his ex-wife and decided not to give it to her when he learned she had no intention of buying him a present. It is also common ground that he told Ms Taylor that and she suggested he use the voucher on himself. Contemporaneous Instagram messages confirm this.

162    In cross-examination, Ms Taylor denied telling Mr Grew that, if he did not use it, she would. But Mr Grew testified that he had a conversation with Ms Taylor in which she did say that and it was her offer to use it that accounted for his action:

I said I don’t know what to do with it and she said they do men’s things as well, and I said, like, I wouldn’t know where to start and there’s nothing that I need. And she said, “Well, I’ll use it if you don’t”, and I said okay and you can have it. I had lost the receipt. It got thrown out with the kids’ toy wrapping. So it really wasn’t any use to me. So I didn’t mind giving it to her.

163    Mr Grew also testified that Ms Taylor never indicated any discomfort or embarrassment in accepting this gift card.

2020

The gold signet ring

164    Ms Taylor testified that in March 2020, following Mr Grew’s confession of feelings and their trip to the USA (which I will come to), he approached her at work and presented her with the gold signet ring, based on the silver signet ring he had previously given her and in the same size, and asked her to try it on. She said he also told her he would “really like [her] to get something engraved on the face of the ring”, although Mr Grew denied this. According to a letter from the respondents’ lawyers relied upon in the victimisation case, the recommended retail price for this ring is $1,900.

165    Mr Grew denied ever “gifting” the gold signet ring to Ms Taylor. In response to her claim, he testified:

[F]rom that point, we made the similar version signet rings for men and women. They’re now currently featured on our website. And Ms Taylor would wear one of the gold ones from time to time, and it’s a – you know, it’s a fairly regular practice that staff members can take something from stock and – and wear it, and wear it that day or sometimes they might wear it, you know, semi-regularly. And it’s – it’s better for them to be – if a client comes in, it’s better for them to be wearing an item of our jewellery rather than someone else’s. So I’m happy for them to do that.

166    This evidence is at odds with the contemporaneous text messages.

167    On 4 March 2020 Ms Taylor sent Mr Grew a text message in the following terms: “Thank you so much for the signet, I really love it!” Mr Grew replied: “No problem. I feel like it needs something on it tho”. Although he admitted that he had started to develop the gold signet ring series in early 2020, Mr Grew claimed that his response related to the silver signet ring. Mr Grew admitted the messages were sent in March 2020, which was three or four months after he had given her the silver signet ring. In these circumstances I consider it to be highly unlikely that Ms Taylor’s message related to the silver signet ring and more likely than not it related to the gold signet ring.

Stuller gold earrings

168    Stuller is a business based in the US which supplied jewellery to Grew & Co.

169    Ms Taylor testified that one day in March 2020, when they were both in the office, Mr Grew presented her with a pair of gold hoop earrings supplied by Stuller in the following context:

[I]t was pretty normal to talk about jewellery in the office and things that we liked, and I had mentioned that I was looking for a pair of hoop earrings in a particular thickness. And Mr Grew purchased a pair and presented them to me out of the blue one day, when he had – he was unpacking a Stuller order.

170    Mr Grew said to her: “Hey, I got you those hoop earrings”. She replied: “Oh, you didn’t have to do that. How much were they?” He told her not to worry about payment.

171    Later Ms Taylor sent a text message to Mr Grew saying “I hope those hoops weren’t too expensive!” to which he replied “[n]ah they weren’t”. She then responded: “Haha ok, well, thank you!”. He wrote back: “You’re welcome:) Is the size ok?” She replied: “The size is perfect I should’ve checked stuller all along!”

172    Nonetheless, Ms Taylor testified that his purchase “came as a shock” and made her feel “a bit awkward and uncomfortable”. In cross-examination she said she accepted the gift because “he wouldn’t let [her] pay and [she] hoped he hadn’t spent too much money on [her]”. She acknowledged that she did not offer to pay in the text message exchange or in a verbal conversation afterwards but maintained that she offered to pay before the texts when he handed her the earrings. She admitted that she had not offered to return the earrings.

173    Mr Grew’s evidence was that he was prompted to purchase the earrings for Ms Taylor by a text message she sent him on 29 December 2019. On that day, Ms Taylor wrote: “Hey, do you think these are a good price $300usd for 14ct white gold hoops?”. She attached a link to an American jeweller’s website. Mr Grew replied to the text: “For you? We coukd probably get them cheaper if they are”. Ms Taylor confirmed they were for her but said: “I don’t need 14ct white gold, silver or 9ct is fine but I just wondered if it’d be cheaper or not! But I’m searching for the right thickness which seems to be 2mm”. Mr Grew then texted: “It should’ve too hard to find otherwise we can make them”.

174    Mr Grew testified that he did not seek payment because the earrings were of “very little value”, at around $60. He said that at no time did Ms Taylor indicate any discomfort or embarrassment about receiving any of the gifts, “only gratitude”. He noted that Ms Taylor chose the hoops and selected the size she wanted.

Gift giving at Grew & Co

175    Ms Taylor was cross-examined about a “culture” of generosity in the business and about gifts she gave Mr Grew.

176    Ms Taylor accepted that she was able to, and did, purchase items for friends at cost price while working at Grew & Co and that this was “something he offered to all staff members”. She also accepted that it was a benefit that staff could obtain jewellery or other items sold in-store at a “reduced wholesale cost” but denied it was a benefit of her employment. In addition, she accepted that another “perk” of working in the jewellery industry was that from time to time she could wear stock items while at work.

177    In cross-examination, Ms Taylor was asked about gifts she had purchased for Mr Grew. Apart from the group gift for his birthday in 2018, there were three. The first was for Christmas 2018, when she presented him with a session with her healer. The second was for his birthday in November 2019 when she gave him a turquoise inlaid pocketknife after first checking with him that he liked turquoise. The third was for Christmas 2019, when she and Ms Vu presented him with a backpack, which Ms Taylor had sourced, sharing the cost equally with Ms Vu.

178    Mr Grew testified that he gave jewellery to three other members of staff. They were:

(1)    a titanium signet ring inlaid with gold and earrings to Mr Snow for his wife, for which he received no payment;

(2)    a diamond pendant necklace with a gold chain, which was made for Ms Nicholson-Black and which she insisted on paying for but for which she paid below the cost price, and a gold diamond ring as a “going-away present” when she left Grew & Co;

(3)    matching pendants for Ms Vu as well as her sister and her mother, which he had offered as a gift but for which she insisted on paying and for which he charged cost price; a pair of rose gold “Gemini” stud earrings, for which she also insisted on paying but for which she paid cost price; and not charging Ms Vu for remaking her mother’s engagement ring and setting diamonds into it.

179    Mr Grew also testified that he had given cash, not only to Ms Taylor, but to other employees as well. He said that on several occasions he had “gifted” Mr Tanaka money to assist with the care of his son, who has cerebral palsy, or the purchase of items he needed, such as new walking frames or bicycles. He also said that he had given Mr Tanaka various amounts of money between $1,000 and $2,000 on multiple occasions as donations to charities supported by Mr Tanaka or for which his son’s school was raising funds.

180    Mr Snow testified that the titanium signet ring was a 40th birthday gift from Mr Grew and Mr Tanaka. He said the materials were not very expensive but the gold inlay was 24-carat and the ring was both unique and “ludicrously hard to make”. He estimated the retail price at between $3,500 and $5,000. He said that the earrings he gave to his wife for Christmas 2019 consisted of three small diamonds on each earring. He said that the cost value would have been “relatively low” and estimated that it was “around the 150, $200 mark”, and that the retail price was around $990. He testified to receiving cash bonuses throughout the time he worked for Grew & Co and in the period during which Ms Taylor worked there the bonus was “around $3,000 to $5,000”. In addition, towards the end of his employment Mr Grew gave him a $5,000 cash bonus to help towards the purchase of a “family car”.

181    Mr Tanaka testified that during the period in which Ms Taylor worked for the business Mr Grew gave him a Bunnings gift card (that he recalled being worth about $200), a Garmin watch, and a massage coupon, and that he had paid for a CrossFit gym membership for him and Mr Snow. He made no mention of receiving cash for the benefit of his son or for charities associated with his son’s disability. Nevertheless, Mr Grew was not challenged on his evidence on these matters and in those circumstances I accept it.

182    Ms Nicholson-Black testified that she received a ring set with diamonds at around the end of 2019 when she was leaving to go travelling. She also said she had received a Christmas bonus in 2020 and 2021 but did not specify the amount. She said nothing about any diamond pendant necklace or anything else for that matter until in cross-examination when she was asked whether she had ever received a gift from Mr Grew “simply out of the blue”, specifically, other pieces of jewellery, and said that she had received one or two pieces “in recognition of her work”.

183    Ms Vu confirmed Mr Grew’s evidence about the jewellery. In the case of the rose gold “Gemini” stud earrings, she said she paid Mr Grew $280. She also volunteered that he remade, at her request, two wedding bands and an engagement ring for her mother. Like the other employees, she testified to receiving cash bonuses. She said she received a cash bonus of $500 at Christmas 2019 and another of $4,000 when she was working on her own “in the middle of lockdown” in order “to keep the business running for [Mr Grew]”.

184    Nonetheless, Mr Grew conceded that the number of gifts he gave Ms Taylor far exceeded the number he had given other employees. He attributed this to fewer requests from other employees for items to be made.

The comments

185    Ms Taylor pleaded that between October and December 2019, in conversations with each other, Mr Grew made unsolicited and unwelcome statements to Ms Taylor to the following effect: “I like petite curvy brunettes”; “You have a really nice body”; “You have a beautiful body”; and “You have bedroom eyes”.

“Petite, curvy brunettes” comment

186    Ms Taylor testified that, in late 2019, while she was in the office and Mr Grew was in the showroom, she overheard him say to a female customer, who looked “quite similar” to her, something like, “I like petite, curvy brunettes”. She said that the comment made her feel “uncomfortable”. Mr Grew denied that he had said any such thing to a customer.

“Beautiful body” comment

187    Sometime between October and December 2019 Ms Taylor recalled having a discussion with Mr Grew about exercise. She recounted that:

Mr Grew would attend CrossFit on a regular basis. And he would always ask me to come along with him. And I think he said something like “Hello, you should come to CrossFit with me”. And I would say, “No. I’m not interested in CrossFit. It’s not something I want to do. I don’t like high intensity activity”. And he told me I had a – a beautiful body and shouldn’t worry.

188    She testified that this comment made her feel “uncomfortable”. She noted that, in terms of her interactions with Mr Grew at this time, the special treatment and the compliments “had started to escalate”. She said that it was “a really difficult thing to try and manage [her] feelings at work around what was going on because clearly none of [her] co-workers were receiving the same kind of treatment”.

189    In cross-examination Ms Taylor said that, while Mr Grew spoke to her about fitness, she spoke to Mr Grew “more so [about] health than fitness” but accepted that they shared the “health regimes” they were undertaking. She denied that the beautiful body comment was made on her return from a short trip to Bali in early March 2020 in response to a comment she made to Mr Grew that she “still had some weight to lose”.

190    Mr Grew admitted that he told Ms Taylor she had a beautiful body but claimed that he did so in early March 2020. He testified that this was the context in which the comment was made. He said that, when she told him she had been doing a detox diet but “still had some weight to lose”, he replied: “Are you crazy? You have a beautiful body”. He said he made the comment in an attempt to reassure her about “her physical insecurities”.

191    Mr Grew also sought to contextualise the comment by reference to remarks he claimed Ms Taylor had made about his physique.

192    Mr Grew testified that in November 2019 Ms Taylor told him that he “was looking really fit” and that he replied saying that he was “feeling fit and feeling great”. In around December 2019 or January 2020 he recalled that Ms Taylor said that he “must have no body fat” and “must be burning fat right now”. In early 2020 he said that Ms Taylor told him that his “arms looked really buff”. While he gave no evidence about it in chief, it was put to him in cross-examination that Ms Taylor had never told him he had a strong back to which he replied: “Yes, she has”.

193    Ms Taylor was cross-examined about these matters. She could not recall whether she mentioned to Mr Grew in November 2019 that he was looking really fit but accepted it was possible. On the other hand, she emphatically denied making the other remarks.

“Bedroom eyes” comment

194    Ms Taylor alleges that in around November 2019 she had a conversation with Mr Grew in which he told her she had “bedroom eyes”.

195    She testified:

Mr Grew was standing on one of the jewellery display cases in front of our office. And I had walked in for the day and went up to him and said, “Good morning. God, I feel tired. I feel so tired today”. And he made a comment and said, “You have bedroom eyes”. But he said it in a way that was kind of provocative.

196    She explained that he was grinning and made “a squinty eye movement”.

197    She testified that this comment made her feel “uncomfortable”. She said that she responded by smiling “awkwardly” and then walking into the office.

198    Mr Grew denied ever saying to Ms Taylor that she had “bedroom eyes”.

“You are perfect” comment

199    On 2 December 2019, Mr Grew sent Ms Taylor three text messages which she testified made her feel “a bit uncomfortable”. She responded to the second only. This was the exchange:

200    It was common ground that the emoji was shorthand for 100% and that was how Ms Taylor understood it at the time.

201    In cross-examination it was put to Ms Taylor that earlier in the day she had had a conversation with Mr Grew in which she discussed a number of matters, including that she was on a diet, that she was insecure about gaining weight, about her knees or “knee issues”, and about feeling self-conscious. Ms Taylor said she did not recall any such conversation. She denied telling Mr Grew that she was insecure about gaining weight and about her “knee issues”. She said that was not true. She accepted that she was “a little bit self-conscious” but did not recall telling Mr Grew that or that she had “an intense fear of abandonment”. She said that her comment about the “P word” (perfect) was an “isolated” and “general” comment and was not related to the conversation they had had earlier that day.

202    She accepted that in her reply messages she was expressing “gratitude and appreciation” for Mr Grew’s kindness and respect. She did not agree that this was because that was what she understood Mr Grew’s original message to be. In re-examination she said her reply was inconsistent with the way she felt at the time, which was “uncomfortable”. She explained that she replied as she had in order to avoid appearing “rude or impolite” and she was worried about causing “damage” to their friendship.

203    When asked in examination in chief to contextualise the second message (the “100% perfect” message), Mr Grew responded:

Ms Taylor – she seemed to be quite – feeling quite, kind of, down that day, and we had a lengthy conversation about a lot of the things that she was concerned about. She was on a detox diet and she had told me about how her mother had difficulty getting up the stairs at their place, and for a number of reasons, she told me that her sister had – had lost a – quite a lot of weight also on a detox diet in Bali. Ms Taylor mentioned that she – she had concerns about putting on weight, and she mentioned her – her legs that she had some insecurities about, and that she had an intense fear of abandonment. And she – she just seemed to be really lacking in confidence on that day. And I offered those texts as – as a way to reassure her and pick her up. Make her feel better.

204    Similarly, he claimed that the third text (“even your ‘flaws’ are perfect”) was an offer of reassurance. He testified that he had sent “reassuring texts” to several other employees.

205    Mr Grew rejected the proposition put to him in cross-examination, that, having regard to his position of power over Ms Taylor and the absence of an “HR person” or middle manager, there was no conversation that he could have had with her which would justify sending the second and third texts. He also rejected the proposition that he sent the texts because he was looking to have a romantic relationship with Ms Taylor. Nonetheless, he conceded that by this stage he had developed feelings for her.

“How amazing you look” comment

206    Four days later (and on the same day that the package containing the Michael Kors jacket arrived in the office), Mr Grew sent Ms Taylor the following text message:

Not sure if I mentioned how amazing you look today but if I did its worth bringing up again. Have a great weekend.

207    Ms Taylor testified that this text made her feel “a bit uncomfortable” and did not really know how to react. She said that at this point in time she was still in a relationship with her then boyfriend and found it difficult to “deal with what was going on and also go home to [her] partner”.

208    In his evidence in chief Mr Grew sought to explain the text. This was his explanation. Ms Taylor always dressed in black. He said she had told him on multiple occasions that she wears black so as not to be noticed. He said that was the only day of her employment on which she did not wear black. She was wearing a colourful shirt. He thought it was “great that she was stepping out of her comfort zone, because she had also spoken to [him] about feeling quite self-conscious in many ways”. He sent the text in the hope that it would make her “feel great that day”. In cross-examination he denied that he sent the text because he was trying to woo Ms Taylor or have his feelings for her reciprocated. Once again, he denied that he was seeking a romantic relationship with her at this point in time.

The slap

209    In her amended statement of claim, Ms Taylor pleaded that on 23 July 2019 Mr Grew was standing in the doorway to the office and workshop and, as she walked through the doorway, Mr Grew slapped her buttocks, causing her to feel embarrassed and uneasy but she tried to laugh it off because he was her boss.

210    Ms Taylor’s evidence in chief was as follows.

211    On 23 July 2019 she was walking from her office through the doorway into the jewellery workshop. Mr Grew was behind her. As she was walking through, he was following. She turned her head to the side and saw him “do a kind of, like, cricket bowl thing”. As his hand came up, he “slapped” her. She indicated that he raised his right arm, extended it out as his arm went over his shoulder in a full circle underarm action with a cupped hand, and slapped her on her lower right buttock. Mr Grew was walking behind her, slightly to the right, approximately an arm’s length away, at a slower pace. He immediately apologised, saying something like “God, sorry”.

212    She felt “extremely uncomfortable”, laughed “out of shock”, and found the incident “pretty overwhelming”. She said it seemed “quite outrageous” that Mr Grew would touch her body. When asked why she did not complain about it, she replied that as Grew & Co do not have “HR”, she would have had to complain about it to Mr Grew himself and she did not want to do that because she was scared that she would lose her job.

213    In cross-examination she said she saw “like, half of his body” as she turned her head to the right. It was put to her that, if Mr Grew was, as she said, walking at a slower pace than she was, at arm’s length away to her right, then he could not have struck her on the buttock. She rejected the proposition. She added that where she was walking “there’s a piece of machinery where you take a natural pause when you’re walking and that’s when it happened”.

214    Mr Grew gave an altogether different account. He claimed that Ms Taylor’s account was “fabricated”.

215    In his evidence in chief Mr Grew said that on the day in question the back of his hand brushed the fabric of her dress:

I was in the – the office/kitchen, and I was doing something on the kitchen bench, and Fiona called out to my attention, and she asked me if I had finished a job in the workshop. It was a task that had to be done on a client’s order. And she walked up towards me and I was standing at the kitchen bench, and turned…

…

So she got my attention asking about a job, if it – if I had done it, and – and I turned and I said, “No, I haven’t gotten to it yet”. And she rolled her eyes and spun around and she was wearing a – a long flowy dress, and when she spun around and rolled her eyes, I said – I turned my hand over and said, “What are you rolling your eyes at me for?” And as she turned to walk away, and the fabric came around. It caught the – or just brushed the back of my hand. When I saw that I said, “Shit, sorry”. And that was it.

216    When asked how he was able to recall the particular date, he said it was because he immediately apologised and apologised again the next morning on the way to an “important jewellery shoot”.

217    In cross-examination Mr Grew said that his hand was down by his side in line with his hips when the dress “kind of expanded”; “[i]t just blew up”. He claimed that the back of his hand touched her dress accidentally. It was put to him that, on his version of events, he had nothing to apologise for. Mr Grew did not answer the question directly. He replied:

I’ve never – I – I, certainly, didn’t want to seem like there was anything inappropriate, and I – I’ve never touched any employee’s person.

218    The statement that he had never touched any employee’s person cannot be accepted at face value, given his admission that he had touched Ms Taylor’s fingertips when inspecting rings on her fingers. Presumably, he meant that he had never touched an employee inappropriately.

The declaration of feelings in early January 2020

219    In her amended statement of claim Ms Taylor pleaded that during a conversation on a Monday in early January 2020 Mr Grew made certain unsolicited and unwelcome comments to her, that she was shocked by Mr Grew’s advance, and sought to reject it. The contemporaneous evidence establishes that the conversation took place on 6 January 2020.

220    Ms Taylor’s testimony was as follows.

221    At around 5.30 pm, as she was leaving work for the day, Mr Grew asked her whether she would “mind just hanging back for a second” as he had something he would like to talk to her about. She readily agreed. They both sat down and he then said to her:

I’ve developed feelings for you. I can’t hold it inside any longer. It’s something I wanted to share with you. I think you’re the most beautiful woman I’ve ever seen. We get along so well, we like the same things. My – my children don’t need a mother, they need a friend. We can run the business together or if you want to start your own business, that’s something I can help you with.

222    While it was not an agreed fact, I took it to be common ground that this was a declaration of “romantic feelings”. It is described as such in a letter from Mr Grew’s lawyers annexed to the statement of agreed facts.

223    Ms Taylor said she was “really overwhelmed at that point” because it appeared as though Mr Grew was “project[ing] this future” on her, although he was aware that she was in a relationship at the time.

224    She replied:

I like you as a person and I respect you as my boss, but I don’t feel the same way. I – I’m in a relationship, as you know.

225    The conversation was a long one but these were the parts she remembered the most. When asked by her counsel whether there was anything else in the conversation that stood out to her, she replied:

I mean, yes, he said he – he couldn’t find anybody else that had the same qualities as me, and that he – yes, sorry, that’s all I can.

226    Ms Taylor was “extremely overwhelmed” and uncomfortable. She suffered from anxiety “every day” thereafter. She said she started having problems sleeping, tossing and turning at night. She experienced fatigue after a poor night’s sleep. She started overthinking things and began to suffer a lot of joint pain. She was clenching her jaw. And she would experience “a fluttery heart” on occasion if she got really anxious thinking about it. Sometimes she would forget things. She became “highly sensitive”.

227    On her way home from work Ms Taylor noticed messages on her phone indicating that her boyfriend (Brohn) had been trying to reach her during the conversation. She then telephoned her sister, Sonia. When asked in her evidence in chief to recall the conversation, Ms Taylor replied:

I said Simon just had a conversation with me and he told me that he had feelings for me. I feel really weird about it. Brohn has called me so many times. I think I said something like, “I – I don’t have feelings for Simon,” and my sister said something like, “Whoa, that’s so inappropriate.”

228    When she saw Mr Grew at work the next day she felt anxious.

229    None of Ms Taylor’s evidence about how she felt following Mr Grew’s disclosure was challenged.

230    In her evidence in chief Ms Taylor said that on her return to work on 7 January 2020 felt she could not tell anyone about what had happened so tried to act as if nothing had happened. It was put to Ms Taylor in cross-examination, however, that she told Ms Vu that day that Mr Grew told her the night before that he had feelings for her. When reminded of that conversation, Ms Taylor accepted that she had mentioned it to Ms Vu who pressed her for more details. It was suggested to her that she told Ms Vu words to the effect that “I like him but I have a boyfriend, so I can’t promise anything now. Maybe in six months or 12 months. I need time to process it”. Ms Taylor did not agree. She adhered to the account she had given in her evidence in chief.

231    Mr Grew admitted to declaring his feelings for Ms Taylor at this point but his account of the conversation was different. As he put it:

I told Ms Taylor that I greatly value the friendship that we had at that point and also importantly the working relationship that we enjoyed, and I told her that I have noticed lately that I have started to develop some deeper feelings and that I’m just not sure if they’re reciprocated, and that I didn’t want to compromise either our friendship which I valued or our working relationship, but I just felt it best to be honest about it. And Ms Taylor responded by saying that she was nearing the end of her relationship, that she felt that she had a pretty good idea that I might have had some feelings for her, and that she needed to do some work on herself and that would take some time, and she said that she also appreciated the friendship that we had and valued me professionally and as a person, and she said that she needed to sit with it for a while, that she couldn’t give me a response at that time.

232    Ms Vu gave evidence about the conversation with Ms Taylor the following day. Her account was that:

Ms Taylor said [words to the effect of]: “Mai – Simon has sat me down and told me after work that he had feelings for me.” My response was to the words of the following effect and the best of my knowledge was, “Wow. That’s big. How did you take that?” And Ms Taylor, to the words of the following effect and the best of my memory, was, “I am shocked. It was quite unexpected.” And my answer to that was, “How do you feel about it? Is that something that you would consider?” And Ms Taylor said, “Well, I’m still with Brohn, so I can’t do anything about it right now, so I have asked Simon to give me time to process and think about it.

233    Although Ms Taylor was not cross-examined about her evidence concerning her reaction to Mr Grew’s declaration of his feelings for her, when he was cross-examined Mr Grew was reluctant to acknowledge that it had caused her any anxiety. I have no doubt it did.

234    On 27 January 2020, three weeks after the conversation and a few days before they were due to travel together to the United States, she discussed her anxiety with a friend and her sister. Text messages exchanged between Ms Taylor and Sonia attest to that. It is apparent that she felt vulnerable at the time because she was going through a painful breakup with her boyfriend, Brohn. The same day Ms Taylor sent the following text to Mr Grew:

Simon – I just needed to express something before we go away next week. I am going through a pretty painful breakup currently, and I need you to know it’s something I had been wrestling with for a long time and didn’t have anything to do with what you told me the other week. If I’m honest, I’m feeling anxious about our trip next week, and I know you would be professional, but regardless I have to put down some boundaries so we are both clear and on the same page. I’d like to keep things work-related between us, and don’t want to worry while we’re away. If anything right now, I need a friend. And less things to stress about so I can focus on myself during this difficult period. I know you understand, but I just had to say it for my own peace of mind.

If you wanted to get a coffee and chat about it tomorrow just let me know.

(Emphasis added.)

235    Ms Taylor also told Ms Vu in a text that she was feeling anxious about the trip. It is clear from that text what she was anxious about. She said:

Like, I feel like I need to say something like how I’m pretty sad at the moment and just wanna focus on work. I don’t want him to be secretly happy or think this means it’s fair game to try something[.]

(Emphasis added.)

236    In response to Ms Taylor’s text Mr Grew texted:

I totally understand. I know it had nothing to do with what I said and it was something that was happening regardless.

I also know that it’s really tough ending a relationship and reconnecting with yourself is the most important thing right now.

I thought it best that I give you space right now and I hope since telling you what I did I haven’t behaved any different towards you and your opinion of me hasnt lessened or changed.

The US will be an amazing experience for both of us and I’m really happy that you’re coming. I don’t want you feel anxious and I would never do anything to make you feel uncomfortable I intended to give you space while we’re there too.

I don’t know if saying what I did to you was the right or wrong thing to do but I’m very respectful of boundaries and I don’t have any intention of compromising them and consequently our working relationship.

Most importantly is that I value our friendship and I don’t want to compromise that if I haven’t already. As a friend I’ll be there for you to do anything I can, unconditionally.

Let’s get a coffee tmw. I think talking about it in person before we go would be a good thing[.]

237    In cross-examination, Mr Grew maintained that there was no inconsistency between his recollection of their conversation and Ms Taylor’s text.

238    In cross-examination, Ms Taylor accepted that the response from Mr Grew was “very respectful”.

The trip to the USA

239    In about November 2019 (on his own account) Mr Grew asked Ms Taylor to accompany him on a trip to the United States of America (USA) in February 2020 to attend the Gem and Mineral Show in Tucson Arizona.

240    The trip took placed in early February 2020. Mr Grew and Ms Taylor attended the Gem and Mineral Show in Tucson before visiting New York City (NYC).

241    It is common ground that when booking accommodation Mr Grew proposed that they share an Airbnb in Tucson. Ms Taylor’s account is that he said to her: “Hey, I found this cool log cabin in Tucson”. She said he had the Airbnb page up on his computer and showed her. She thought “[i]t looked quite, like, close quarters and in a rural part of the town”, so she suggested they stay closer to the fair and told him she would “look something up”. It is not entirely clear when this conversation took place. Ms Taylor said it was in mid-December 2019. I infer from an email exchange between the two of them on 17 December 2019 relating to the booking of accommodation in NYC that it was around the same time. In that exchange, Ms Taylor inquired whether Mr Grew had a budget in mind for accommodation in NYC and, when he asked her whether she was looking at hotels or an “air bnb”, she replied with details of two hotels, the prices for two people and two rooms, and the comment that: “Airbnb’s are weird because most places are micro apartments.”

242    Ms Taylor testified that Mr Grew had previously told Ms Vu that he had wanted to take her to NYC for two days after the gem fair because he knew her favourite jewellery store [Mociun] was there”. When they arrived in NYC the hotel had booked their rooms next to each other. Ms Taylor said that this made her feel “quite uncomfortable”, so she asked to be moved to a higher floor. She sent a text message to Mr Grew saying she was going to “check out a quieter room”. In cross-examination she said that she provided this excuse to avoid offending him.

Ms Taylor’s attitude towards the trip

243    On around 7 February 2020, Ms Taylor sent text messages to Ms Vu saying “[i]t’s been fun. Like we never run out of things to say” and “[y]eh it’s fun! We are getting along totally fine”. In response to an inquiry from Ms Vu as to whether there were any “awkward conversations”, Ms Taylor replied: “Nope! Totally easy and flows”.

244    While in Arizona they went on a hike together. Ms Taylor sent a text message to Ms Vu saying: “I feel weird to be in my tight workout gear in front of him but I guess I have to get over that”. While on the hike Mr Grew and Ms Taylor took photos of each other. She sent him one of the photos she had taken, commenting: “[t]hat first pic is soooo nice! You look so happy”. In a follow-up text, she wrote: “And your abs! Haha”. She sent the same photo of Mr Grew to Ms Vu. Ms Vu commented: “check out those abs under the shirt!” Ms Taylor responded: “Hahah I know”.

245    When it was put to her in cross-examination that she enjoyed her trip to NYC, she replied, “I enjoyed parts of my trip. I didn’t enjoy the entire trip, no”. She accepted that on various days she organised and booked places for the two of them to eat.

The purchase of the Mociun ring

246    While in NYC they visited the Mociun store together. Ms Taylor testified that Mr Grew “had [her] try on a few rings” as he knew that she “had loved many of their rings for years”. She asked him to take some photos of the rings on her so she could show her sister.

247    Over lunch that day Mr Grew said “I would really like to buy you a ring. But I don’t know if it would be inappropriate”, and that she replied: “Yes. It would be inappropriate”. Later that evening or early the next day they corresponded by text about which rings Ms Taylor liked at the Mociun store. The following exchange of texts then occurred:

MR GREW:     TBH [to be honest] I’ve been seriously thinking about getting it because I know how much you love mociun and would like you to have something nice that you would love. But I’m torn because I don’t want to make you feel uncomfortable. Just not sure if it’s out of line.

MS TAYLOR:     Yeah I was thinking about you offering that. And was really touched by it. I’ve loved that ring for years but I’d really hate to take advantage of your kindness, I mean, I’m not that kind of person anyway. But I wouldn’t want it to be a conditional purchase. I wouldn’t be uncomfortable but it’s a lot of money, so I think that would be your own decision, I can’t tell you what to do.

MR GREW:        Of course it wouldn’t be conditional. That’s not me

(Emphasis added.)

248    Ms Taylor testified that she felt “quite awkward and uncomfortable” about his offer to buy the ring for her, especially since she was “under his care” while overseas. She clarified that “it’s not like [she] could go to a friend’s place” or “seek out” any friends. In cross-examination she acknowledged, however, that she had friends in NYC, that she could have sought them out, and that she did meet up with them, although she noted that it was just “a quick catch-up”. Ms Taylor also acknowledged in cross-examination that in her text message she was communicating to Mr Grew that she was not uncomfortable with him purchasing the ring “at the time”.

249    Ms Taylor testified that they had the following conversation on the way to breakfast the next day:

I said, “I have been thinking more about this. And I really don’t want you to buy me the ring”. And he said, “Really? I really want to buy you the ring”. And I said, “You can’t buy me the ring. I don’t want you to buy me the ring”. And we went back and forth a couple of times. And then we went and had breakfast and walked back to the Mociun store. And when we walked in, he asked the saleswoman to get the ring out. And he said that he would take it.

250    She said that this made her feel “really uncomfortable” since he “disregarded” what she had said and “just did what he wanted to do anyway”.

251    Mr Grew testified that he sent the text message offering to buy the ring because he “could see how much she really liked it”. He said that he did not want to make her feel uncomfortable, was not planning on purchasing it and “only mentioned it because she sent [him] the photo of it”. He said that after this exchange Ms Taylor did not indicate that she did not want him to purchase the ring and in fact “encouraged [him] to go back to the store”. He maintained that Ms Taylor never indicated any discomfort or embarrassment.

252    In relation to the care guide and cloth for the ring, Ms Taylor agreed that after initially taking them back to her home, she brought the care guide into the store and left it there.

Transport from Sydney airport

253    Towards the end of the trip, Ms Taylor sent Mr Grew a message saying: “My dad just asked if he should pick me up from the airport on Tuesday? Like if u just wanted to get straight home and not take me Id totally understand!” to which he replied “No, I’ll drop you back home”. She agreed in cross-examination that she opted to accept Mr Grew’s offer rather than have her father drive her home.

Ms Taylor’s condition in March 2020

254    After Ms Taylor returned from the USA, it will be recalled that Mr Grew gave her the gold signet ring and the Stuller gold earrings. She testified that at this point she “felt trapped”. She did not want to “jeopardise” her job or offend him. She was not sleeping normally at this time. She gave evidence that it would take her a while to fall asleep and she would toss and turn. She recalled having “quite vivid dreams about it that would wake [her] up” and she would clench her jaw while asleep and “wake up with jaw pain”. At work she felt “quite tired” and would sometimes have “brain fog and lack of appetite” and “forget some things”.

The 1 June 2020 remarks

255    On 1 June 2020, about five months after he first declared his feelings for Ms Taylor, which she told him were not reciprocated, Mr Grew revived the subject.

256    That evening Mr Grew drove Ms Taylor home from work. On her account, when they arrived at her house, he parked the car and said: “Hey, can I ask you something?”. She said: “Yes”. He then asked: “Are you and I going to become something or do I need to turn my feelings off?” Ms Taylor replied: “I’m really sorry. I don’t have romantic feelings for you and you need to move on”. During the course of the conversation, Mr Grew told her he would “fight a tiger” for her.

257    Mr Grew’s remarks caused her “a mix of awkwardness and [discomfort]”. She said she never thought she would have to reject her boss, especially after they had developed “a nice friendship”. She said she derived no joy from it and felt “quite sad” and “overwhelmed”.

258    Mr Grew’s account of the conversation was as follows:

[W]e were speaking about relationships and – just in general – and she mentioned that she had met – had met a man

…

And I mentioned that I had also started seeing someone, and – and I was worried as a – a – a single parent, and I had three kids – I was always concerned about how much – the impact that could be on a new potential partner. And I asked Fiona if I could ask her a question that related to the conversation we had in January and would that be okay, and she said, yes, that’s fine. And I said, “When you said that you just wanted to keep things work related, was that because we work together or is it because I’ve got kids?” And she said, “I just don’t see you in that way,” and I think she might have said, “I – I – I don’t want to hurt you.” And then we had a – a conversation after that where I described that [I] completely understood her position and that the – the working relationship and the friendship that we both enjoyed was of paramount importance and sustaining that was a huge priority, especially from – from my point of view; you know, I – I never wanted to disrupt that and have any impact on that..

(Emphasis added.)

259    It was put to Ms Taylor in cross-examination that the conversation covered a number of areas, including other relationships. Ms Taylor said she did not recall that. She denied that Mr Grew told her during that conversation that he had just started a new relationship. She could not recall him mentioning to her that he had been “online dating”, but she admitted that he had been dating before then. She denied telling Mr Grew that she had met a man (Chris) who was now her partner. She admitted that she started dating Chris in or about June 2020. She denied that Mr Grew told her he had some concerns about dating while he had three children and queried with her whether that would be a problem for people he was seeking to date. She also denied that Mr Grew asked her whether the reason she wanted to keep things work-related was because of their working relationship or because he was separated with children. She could not recall telling him that she valued their friendship and their working relationship. She admitted she may have told him she did not want to hurt him.

260    During the course of the cross-examination Ms Taylor broke down. There was nothing confected about this. My strong impression was that recalling and recounting the events was distressing for her.

261    Later that evening Ms Taylor received a text message from Mr Grew which reads as follows:

Thanks for talking, I really appreciate it. By saying I’d fight a tiger I meant that I’d do anything to make you feel safe. More than anything now it’s important to me that you feel safe at work and in your position within the business. I’d never do anything to compromise that.

262    She replied:

Hey, sorry, I’ve been cooking! No worries, I feel better after chatting. Don’t worry about the tiger comment, I knew what you meant.

Thank you for saying that, I really appreciate it.

263    Ms Taylor had a rough night’s sleep. She was feeling anxious, “like a nervousness in [her] stomach”.

264    Ms Taylor testified that the following morning, while driving to work, she started crying uncontrollably so much so that she could not see in front of her and had to pull off the road. She said she was hyperventilating at this point. As she gave this evidence, she became visibly distressed as if she were reliving the occasion. After she composed herself she was asked why she pulled over. She answered that she thought she was having a panic attack. She explained that as she was driving to work she started thinking about the conversation with Mr Grew the previous evening and “[her] body started to react”. Her heart was fluttering. She had trouble breathing. She was shaking. Her teeth were chattering “a bit”. She could not regulate her breathing. She said she could not pretend to be okay at work that day after rejecting her boss. She said she tried to calm herself down. But it took her “a really long time … to slow the tears down”.

265    At 8.44 am she received a text message from Mr Grew advising her he would be “in”, which I take to mean at work, “closer to 10am”. Ms Taylor sent the following reply:

Hey. I don’t think I can come in today. I’ve had to pull off in beecroft because I started crying. I think everything has just caught up with me and I don’t think I can pretend to be fine at work today. I’m really sorry, I don’t mean to be dramatic or anything. I can’t really control it[.]

You don’t need to do anything. I just need a mental health day. I can do emails and stuff from home.

266    Mr Grew responded:

Oh shit, Of course. Take whatever you need. I’m so sorry if I’ve contributed to how you’re feeling[.]

Also, if you feel that you need to take Thurs and Friday off I want you to know that I’m supportive of you doing whats best for you.

(Emphasis added.)

267    Ms Taylor said she felt reassured by Mr Grew’s response.

268    In cross-examination Ms Taylor rejected as inaccurate the proposition that the reference in her text to “everything” having “caught up” with her was not just a reference to her conversation with Mr Grew the previous night but also to other matters going on in her life with her family.

269    At 8.57 am Ms Taylor sent the following texts to her sister, Sonia:

I was driving in to work and just started Uncontrollably crying. I’ve had to pull over in beecroft

Simon dropped me home last night and brought up stuff and I had to tell him I don’t see him in that way and that he needs to move on and close this off. Like we had a proper chat about it. I was fine and now this morning I can’t keep it together[.]

270    There followed a lengthy exchange which it is unnecessary to recount.

271    The next day Ms Taylor saw her GP, Dr Eve Tsironis, who put her on a mental health plan and referred her to a psychologist for therapy “following the breakup of a relationship that lasted 3 years”. Dr Tsironis’s notes make no reference to the events of 1 or 2 June. Ms Taylor did not tell Dr Tsironis the real reason for the consultation. She explained that she understood that Dr Tsironis was also Dr Grew’s “family doctor” and for that reason she did not wish to share with her the difficulties she was having with Mr Grew. She was concerned that Dr Tsironis would “relay” what she told her to Mr Grew. She added that she was also “stupidly worried” that Dr Tsironis might see Mr Grew differently. She did not think to see another doctor. She explained that Dr Tsironis was her only doctor at that time and she was not thinking straight. She said: “I was not really of sound mind”. She explained that she had gone to see Dr Tsironis hoping to discuss the situation with Mr Grew but when she arrived at the surgery she became “extremely paranoid”. It was put to Ms Taylor that she could have seen a different doctor in the same practice. She agreed but added “she was my doctor, and again, I was quite emotional when I went there”. She did not accept it was “open” to her to return to her previous GP, with whom she had had a longstanding relationship, because she had moved her records to the new practice and did not “particularly want to” return to the old one.

272    On 5 June 2020 Mr Grew texted Ms Taylor, saying he was worried about her:

Mr Grew:    I’m ok. Been a little worried about some stuff tho

Ms Taylor:    … Worried about me stuff or other stuff?

Mr Grew:    … Worried about you stuff.

Ms Taylor:    Don’t worry about me stuff. Im not going anywhere. It’s just been a lot to deal with from being in a relationship when you told me, then ending things and trying to manage work with what you shared with me. I haven’t had any breathing room to fully process it and this week off is a little break my body needs. I’ll be good next week.

Mr Grew:    Ok that’s a relief. If there is anything I can do I always will and if thats just space right now, just take what you need.

I was worried that I’d be demonized for something I couldn’t control. And the thought of the anxiety you felt from the fear of me doing that to you because of something you didn’t feel really affected me.

I just want to [move] forward positively.

I don’t want to lose what you bring to work and to everyone here.

…

Ms Taylor:    While I can understand that you’re feeling discomfort, using phrases like demonised and out of your control is how you feel but it’s not the reality. You were in control because you could choose how you handled the situation. You took a big risk and there was always 50% chance that it wasn’t going to work out and even though its uncomfortable now, it will pass. I’m not going to do or say anything about it but I do just want to focus on myself and move forward in a positive direction. See you on Tuesday.

Mr Grew:    I’m really sorry. I’m sorry to put it on you and I’m sorry to have effected you the way that I have by my feelings and actions.

(Emphasis added.)

273    Ms Taylor testified she was upset and shocked reading Mr Grew’s texts because she “felt like he was trying to act like a victim”. She said she was experiencing “extreme fatigue and anxiety” at this time. She would “never sleep through the entire night”.

274    Mr Grew was cross-examined on these texts. When it was put to him that the first remark emphasised above (“I was worried that I’d be demonized for something I couldn’t control”) was a reference to his feelings for Ms Taylor, he replied: “Back in January”. He emphatically denied it had anything to do what he had said to her in the conversation on 1 June. When it was put to him that the second remark (“And the thought of the anxiety you felt from the fear of me doing that to you because of something you didn’t feel really affected me”) was a reference to the conversation they had on 1 June, Mr Grew equivocated:

No. I can’t be sure. I think that’s more of a reference to January where she said that she was anxious about the – the upcoming trip.

275    In response to the cross-examiner’s suggestion that the next statement (“I just want to move forward positively”) was a statement of his desire to move forward positively from the conversation on 1 June, Mr Grew gave the following answer:

Well, I think we’ve established that there was nothing there and there hadn’t been anything there. And – you know, and when she said that there was no – she just didn’t see me in that way, well, that is what it is. And it’s still important that we do move – move forward positively. Going back to the – the demonised bit, you know, in December, I realised – I realised that I liked her. You know, and we had a good working relationship, and I was under the impression that those feelings, on some level – there was a good chance that they were reciprocated. And the way that it played out was that I was wrong. What I didn’t want was Fiona to hate me because of that or for the business relationship or the friendship to suffer for that.

276    The cross-examiner pressed on:

You say the context for the “demonized” words – the words saying:

I don’t want to be demonized –

You say that’s a reference back to the conversation you had on 6 January 2020?---Yes.

All right. So for her to respond on 5 June saying:

Using phrases like demonised and out of your control is how you feel but it’s not the reality –

still referring back to a conversation on 6 January 2020. That’s a weird thing to say, isn’t it?---

277    Mr Grew claimed to have some difficulty understanding the question, objection was then taken, and the cross-examiner moved on:

I think I’ve made my point, your Honour. Further down in Ms Taylor’s text, she says:

I’m not going to do or say anything about it but I do just want to focus on myself and move forward in a positive direction.

Do you see that?---Yes.

You must have understood that to be a reference to the conversation you had on 1 June. Correct?---No, I understood that to be a reference to the conversation in January.

The conversation in January that she has sat on for six months and said:

I’m not going to do or say anything about it –

?---I can’t speak to her frame of mind.

And then, you respond:

I’m really sorry. I’m sorry to put it on you and I’m sorry to have effected you the way that I have by my feelings and actions.

Do you see that?---Yes.

You were apologising for what you did on 1 June. Correct?---No.

You had already said sorry for January, hadn’t you?---I can understand when – during that – that June conversation when I asked Ms Taylor if it was because we worked together or, of course, we have kids and the answer that she told me was honest and reasonable and that it was just – that I don’t see [you] in that way. I’m very aware that that was the first time that she said that. I’m very aware that sometimes it can be difficult to – to say that to someone.

Sorry. When you say it was the first time that she had said that, first time she had said what?---Those words - - -

What words?---I just don’t see [you] that way.

She had sent a text to you on 27 January making that pretty clear, hadn’t she?---Yes, and I accepted that.

And the reason she had to say it again on 1 June was because you had declared your interest for her again?---No. I – I was dating and pursuing other relationships and I was in one at that time.

Well, I suggest to you, Ms – Mr Grew, that you’re lying?---I don’t accept that at all.

278    Ms Taylor was due to return to the office on 9 June 2020. On 8 June 2020, the Queen’s birthday public holiday, she and her sister chatted via text. In the course of the chat Ms Taylor wrote:

I’m a bit anxious about tmw but just gotta smash through it[.]

279    Sonia replied:

Yeah

Be really normal

Set the tone

And practice boundaries already!!!!!

The aftermath

280    Ms Taylor returned to the office on 9 June 2020.

281    Ms Taylor claims that between 8 June 2020 and 7 August 2020, her working relationship with Mr Grew deteriorated, particularly after 11 June, when she asked for a reduction in her working days, and after 3 August, when she asked for leave to move house. Mr Grew accepts that there was a “change in their dynamic” at this time (and not for the better) but does not attribute the change to anything that happened in or as a result of anything he said in the conversation in his car on 1 June 2020 (or Ms Taylor’s reaction to it).

Request to reduce working days

282    On 11 June 2020 Ms Taylor had a meeting with Mr Grew in which she requested to work four days a week on the same rate of pay. It is common ground that during the meeting Mr Grew told her that this was equivalent to a request for a 20 per cent pay increase (which it was). Ms Taylor said that he became “quite cold and serious in that moment”, which upset her and caused her to “get a bit teary”. Mr Grew accepted in cross-examination that she became emotional during the conversation. After the conversation Mr Grew fetched her a glass of water and she left the office for a brief walk.

283    In cross-examination Ms Taylor testified that her response was largely a reaction to the way Mr Grew spoke to her rather than to what he actually said. She described him as “closed off and shut down and cold and emotionless”.

284    Mr Grew testified that he told her that accommodating her request would be difficult as the business was “just coming out of COVID” and that he need a few months to “sort things out” if he were to grant it. In cross-examination Ms Taylor accepted that he was open to having a conversation but needed some time to consider the request.

285    Mr Grew testified that he then said:

In the meantime, you’ve been working one day a week from home for a few weeks now and a couple of people have expressed some concerns that they felt it was – it was a form of special treatment because they don’t get to do the same and I think it’s best that you come back into work full-time until we can make that happen because your role is primarily onsite and I need to have everyone on board so we can come out of COVID strong.

286    Ms Taylor denied that he said that.

287    That night she had the following text exchange with Mr Grew:

MS TAYLOR:    Hey. So the reason why I got emotional today was because I felt things changing in our dynamic and it triggered an emotional wave in me. I don’t want things to change but I guess they have to. I care about you a lot so that makes this quite difficult, especially knowing I’ve made you feel upset about things. Despite all of this, I know you’re a good person with a good heart. I’m quite an emotional person and I don’t like upsetting people.

MR GREW:    Hey, i don’t want our dynamic to change either. I value you as a person greater than anyone else I know and the dynamic and friendship that we have has given me strength and support.

    I know that you’re an emotional person and it’s a really beautiful quality. I’ve just been wrestling with the thought that Ive damaged the friendship that we’ve had and let it down somehow.

    Regardless of all of that we work well together and make a strong team. I don’t want to change that[.]

MS TAYLOR:    The friendship is still there on my end, which I want to keep.

(Emphasis added.)

288    Ms Taylor testified that she felt a little better after receiving his response because she felt like “he had actually … heard and understood where [she] was coming from”. She said she genuinely hoped that she would be able to continue working for Grew & Co at this point.

289    In ensuing text messages, Mr Grew offered Ms Taylor a lift to work on the following Monday. She responded saying that “it might be too soon” as she needed her “emotions to sizzle down a bit first”.

290    In cross-examination, Mr Grew accepted that their “dynamic” had changed by then.

Further interactions in June – July 2020

291    Around 15 June 2020 Ms Taylor informed Mr Grew via text that she needed to leave work at 4:15 pm to pick her car up from a service. Mr Grew readily agreed. Ms Taylor accepted that Mr Grew had no issue with her leaving early and that this was consistent with his previous behaviour towards her. In the text exchange he also complimented, and expressed his appreciation for, her work.

292    Around 19 June 2020 Mr Grew sent a text to Ms Taylor offering her a lift to work. She replied: “That would be great, as long as you’re sure!”. She accepted in cross-examination that she was not reluctant to accept his lift.

293    On 25 June 2020 she sent Mr Grew a text saying, “not sure if I said yes or no but I have to drive myself tomorrow”, to which he replied “[o]k no problem”.

294    On 30 June 2020 she asked whether it was possible for Mr Grew to give her a lift to work.

295    On 28 July 2020 at 7:33 pm Ms Taylor sent Mr Grew a text asking permission to start work at 10:30 am the next day because she had a private inspection. She accepted that Mr Grew had no difficulty allowing her flexibility to attend the house inspection but noted that he “made [her] take it as leave, which he ha[d] never done before”. Mr Grew explained that he asked her to take leave because the store was only open from 9 am to 5 pm so there was no opportunity for her to make up the time after 5 pm, which he acknowledged was what “she may have been able to do in the past”, ie pre-COVID.

296    Ms Taylor testified that her mental health “definitely started to decline in July” because “Mr Grew’s treatment towards [her] definitely had changed”. She continued:

He actually had a conversation with me and said that he could no longer give me special treatment and he has to treat everyone the same. And he started to be quite cold towards me. He would limit his conversation with me as so much to, “Hi” and, “Goodbye,” some days. He would leave me out of important conversations to do with my role and things that directly affected my role. At times, he was quite hostile towards me.

Request to take annual leave to move house

297    On 3 August 2020 Ms Taylor asked Mr Grew for a day of annual leave to move house two days later.

298    She testified that “he got visibly angry”. She said he told her she should move house on the weekend, that he had organised a meeting that day with a potential social media intern. She said she replied: “I had no idea, why didn’t you tell me”, and he responded with “something about [her] asking for too much”.

299    Ms Taylor testified that Mr Grew “stormed out of the office”. As he did so, she said he “threw the front door back so hard that the inner glass walls shook”. She recalled “shaking from the interaction” and starting to “get upset”. She remained at work for the rest of the day. While on occasions in the jewellery workshop he might lose his temper and yell or throw something “if he made a mistake with some jewellery or something like that”, he had never previously behaved like that to her.

300    Mr Grew denied that he responded in this way. He testified that he asked Ms Taylor if it would be possible to move on the weekend because they were “really busy” at that time. He said that after he mentioned the interview, she asked him: “Can’t you just move it?” He denied becoming angry. He also denied slamming the door, adding that it was a “frameless glass entry door” with a “soft-close hinge” so he was unsure “if it would be even possible to slam”.

301    It is common ground that Mr Grew relented. He approved her request for leave.

Changing passwords

302    On 5 August 2020 Mr Grew sent Ms Taylor a message letting her know that he had changed the Instagram password for the Grew & Co page. He said he had done so because he “had to add a new device and log in” and could not remember the old password. Ms Taylor was absent from work that day (moving house). Ms Taylor testified that she was “a bit confused” and that his actions “felt like a bit of a retaliation”.

Inadvertent text message criticism

303    Two days later, on Friday 7 August 2020 Mr Grew sent a text message to Ms Taylor that was obviously intended for someone else. It read:

Unfortunately Fiona was pretty quick to deflect blame from her onto you this morning. Don’t worry everything was fine but it was interesting to see how quickly she’ll throw it onto someone else so she doesn’t look bad.

304    When he realised what he had done Mr Grew texted her again, explaining that the text was sent in error and asking whether they could talk about it when she returned. Ms Taylor testified that, on her return to the office, she was too upset to talk to him and, when Mr Grew asked to talk about it, she replied: “Not right now. Maybe on Monday”, and left for the day.

305    On Monday 10 August 2020, Ms Taylor testified that she did not go to work because she “felt completely overwhelmed and anxious”.

306    She attended work the next day, however. Late morning, she had a meeting with Mr Grew in a nearby café and confronted him about the text. She recalled asking Mr Grew for whom the text was intended. He told her that was not important. He did not apologise. She testified that he said her productivity had declined, that she was “late to work five Friday mornings ago or 10 minutes late to work five Friday mornings ago”, that she had “been on [her] phone more” and “basically proceeded to tell [her] how [her] work had kind of gone downhill”. She recalled him making a comment about “trying to accommodate [her] going down to part time work”. She told him she was no longer interested and asked him why he was doing that. She said he replied: “I’ve been talking to my accountant and he’s worried about the amount of access you have to the company”. Ms Taylor was taken aback by his reply and also “quite confused”. She became “visibly upset a few times during that conversation because it seemed to be going nowhere”. She returned to work after the conversation to “collect [her] things and leave”.

307    In cross-examination she admitted to being concerned at the time that, whereas her late starts and early departures had become a norm Mr Grew had created, she was now being required to take leave, but did not think she had raised it with him in that conversation. She conceded that he might have told her that he was “just trying to treat everyone equally” and that she was being treated no different from everyone else. She felt that he was being cold to her and told him as much. She recalled telling him that he had “basically stopped talking to [her] in the office” other than saying “hi” and “goodbye”.

308    Mr Grew recalled their conversation on 11 August 2020, after his inadvertent text message criticism, in the following way:

Ms Taylor said to me, “Who was the text meant for?”, and I said the recipient of the text is not important, but the content of the text is, and I was made aware of several occasions where other people were blamed for mistakes that you had made, and I said that concerns me, and … I said I was also concerned that your punctuality and productivity have slipped because you’ve been arriving late and leaving early more and you’re spending a lot more time on your phone … and Ms Taylor said, “But I contact suppliers on the phone”. And I said, “That’s okay, but you’re also spending a lot more time on the phone texting and when other employees see you doing that, it implies it’s okay for them to do the same”, and she said, “Me coming in late and leaving early is a normal that you created for me”, and I said that … “After COVID, I’m just trying to keep – to keep everyone equal and treat everyone the same and she said … “You’ve been cold to me and now we only talk about work things”, and I said that, “We’re a jeweller down and I’ve got to spend all of my time in the workshop to try and keep things moving and I just don’t have the time to – for conversation with everyone”, and I said, “I’m the same with Andy and with Ayesha and Christina and – and everyone else”, and I said, “I’m just trying to get through what I have to do each day”, and she said … “All of – all of your best designs are mine and I’ve made so much money for you”, and then she said, “And I could be talking to lawyers. So – I mean, I’m not, but I could be, but I’ve been protecting you this whole time”. And I said, “Protecting me from what?” And actually, that was when she mentioned the lawyers. And then she said, “I don’t even know if I want to work for you anymore”. And I said, “Well, that’s something that only you can think about”. And she said, “I’m going to – I’m going to go back to the office, I’m going to get my things and then I’m leaving”. And I said, “Okay”.

…

When she went back to the office, she was angry. She was visibly angry. Little contact with anyone. Went into the office, shut the door, came out briefly. I notic[ed] that she was packing up all of the belongings on her desk. She came out into the workshop, she … shuffled some things around. She took a couple of packets from my job-box, which has all the things that I was working on, and she went to the safe. I – I presumed she was putting things from her desk back in the safe. She did go into the safe and – and she packed things into her backpack fully.

309    Ms Taylor admitted taking the Mociun care guide and cloth as well as two rings in the job box that she says were gifted to her.

310    Ms Taylor did not return to the office after 11 August 2020.

Further changing of passwords

311    On 13 August 2020 Ms Taylor sent a text to Mr Grew asking if there was a reason why she had “been logged out of Instagram and emails”. He replied that he had changed the Instagram password because he “had to schedule posts and forgot the password” and changed the OneDrive password because “no one [was] scheduled to work from home for the foreseeable future and generally emails [were] not responded to outside of work hours”. She testified that she was “quite confused” especially because she did not believe that what Mr Grew was saying was accurate. In her experience, it was “quite normal” for employees to log on outside of work. She had never been logged out of her emails before then. She believed he was being dishonest with her.

Ms Taylor’s mental state between leaving work and receiving the respondents’ response to her complaint

312    During this period Ms Taylor gave unchallenged evidence about her mental state. She would burst into tears “at random times”. She was not sleeping well. She worried about what Mr Grew might be saying about her after she had spent years cultivating relationships with jewellery suppliers and businesses. She avoided the city and the jewellery industry on that account. Her social life was also affected. She derived no joy from social situations and spent more time at home.

Findings

Some matters of context

313    First, I take Mr Grew’s acknowledgment that he had “feelings” for Ms Taylor to be an admission that he was attracted to her and was interested in pursuing a romantic relationship with her. I consider it more likely than not that Mr Grew formed an attraction to Ms Taylor well before he acknowledged his feelings and certainly by August 2019 when Ms Vu could sense it. Indeed, I consider it more likely than not that he was attracted to her at least by July 2019. I find that his interest in her did not wane after she made her position clear to him in January 2020, before the trip to the USA. Contrary to his assertion in his text message to Ms Taylor on 27 January 2020, he was not respectful of boundaries. While Ms Taylor attempted to establish boundaries between them, it was not until relations between them cooled in mid-2020 that he did anything to respect them.

314    Second, Grew & Co is a small business. When Ms Taylor started work there, she was relatively young. Mr Grew and Ms Taylor worked very closely together. She was his subordinate. There was no middle management. She reported directly to him. No other person in the business had responsibility for personnel matters or human resources. He understood at the time he acknowledged he had developed feelings for her that he was in a position of power over her and knew he needed to be careful about that.

315    Third, Ms Taylor was not the only staff member who received multiple gifts from Mr Grew.

316    It is in this context that the allegations must be evaluated.

Which of the items were gifts and/or unsolicited?

317    It will be recalled that the respondents disputed that the following items were unsolicited and/or gifts: the emerald and diamond platinum ring; the Hydra ring; the six stone diamond necklace; the peach sapphire; the diamond cluster necklace made with the peach sapphire; the $2,000 in cash; the massage; the Gemini stud earrings; the Michael Kors jacket; the MECCA gift card; and the Stuller gold earrings.

318    It is difficult to understand how Mr Grew could ever have disputed that any of these items were gifts and/or unsolicited. The evidence is all one way. Contrary to Mr Grew’s evidence, the fact that Ms Taylor had mentioned to him that she wanted a piece of jewellery does not mean that the piece was solicited or that it was not a gift.

319    As I indicated earlier, however, there is no evidence that the channel set diamond ring was unsolicited or a gift.

320    The respondents also disputed that the following items were provided to Ms Taylor, unsolicited and/or gifts: the gold signet ring; the white gold hammered band ring; the 5 mm silver ring; and the 10 mm silver ring.

321    As indicated at [167] above, the contemporaneous text message exchange supports Ms Taylor’s version of events and the fact that the gold signet ring was gifted to her in early March 2020. I find it was a gift.

322    It will be recalled that the other three rings were made to enable Ms Taylor to disguise some tattoos. I find that Mr Grew agreed to make the rings and sent Ms Taylor a text message saying that Mr Tanaka could make them. That much was not in dispute. There is a conflict in the evidence about what happened next. Ms Taylor said that Mr Grew gave them to her. He denied that. In cross-examination Ms Taylor accepted that Mr Tanaka brought the finished rings to where she was sitting. That is not necessarily inconsistent with Ms Taylor’s evidence in chief because, even if Mr Tanaka delivered them to her, her case is that they were a gift from Mr Grew.

323    Ms Taylor said that Mr Tanaka put the rings in a job box. Mr Tanaka admitted that was his general practice. On this particular occasion, however, he insisted he did not do that but handed them to Ms Taylor. I accept Mr Tanaka’s evidence. He had a distinct recollection of doing so and he was not shaken in cross-examination. But nothing really turns on the difference in the evidence. There is no dispute that the rings were made by Mr Tanaka as a result of Mr Grew’s offer to make them or have them made and Ms Taylor was never charged for them.

324    I do not accept Mr Grew’s evidence that he did not ask to see the rings. I found Ms Taylor’s evidence convincing on this point. I also accept Ms Taylor’s evidence that the white gold hammered band was made at the same time. Mr Tanaka remembered a white gold hammered band. He did not remember it being in the same “job packet”, but he did not deny it.

325    The text message suggests that Mr Grew agreed to the making of the silver rings. Ms Taylor did not explain why one of the rings was made in white gold. Since she was not charged for it, however, I accept that it, too, was a gift.

Did Mr Grew slap Ms Taylor on her buttock(s) on 23 July 2019?

326    It was submitted on Mr Grew’s behalf, in effect, that Ms Taylor’s account was incredible. This was the written submission:

The version of events as set out by Ms Taylor are physically impossible. Ms Taylor’s evidence was that Mr Grew was standing to her right, he swung his right arm and struck her right buttock cheek.

Further, it is extraordinary that the incident (if it occurred), which can easily be regarded as the most overt instance of sexual harassment claimed, would be entirely uncorroborated, and that there would be no evidence of any reporting of such conduct to a confidant – not even Ms Taylor’s sister – if it indeed occurred.

Ms Taylor’s evidence, in any event, is that she regarded the ‘slap’ as accidental at the time. It is not clear that she ever considered the conduct to have been intentional – or the basis for any such change in her belief. Her evidence is simply silent and unexplained. On no view could the conduct, if accidental, amount to sexual harassment.

327    I reject the submission that the events as Ms Taylor described them are “physically impossible”. Ms Taylor’s evidence is that he was standing behind her “slightly to [her] right”. Whether he could have struck her depends on the angle of his position and this particular matter was not explored in the cross-examination. It is not difficult to understand how, in an underarm swing of the kind Ms Taylor described across Mr Grew’s body in her direction, his hand could have collided with her right buttock.

328    I also reject the respondents’ submission that Ms Taylor’s statement in cross-examination that there was “a natural pause” at the machinery was a fabrication. I consider it more likely that she had not previously been questioned in such detail about the event such that she had not thought to mention it before.

329    Nor do I think the absence of recent complaint, which is the essence of the second point, is significant. While it was once the case that a jury in a sexual assault case had to be warned that it was unsafe to convict on the uncorroborated evidence of a complainant, that has not been the case now for nearly 40 years. In The Common Sense of Jurors vs The Wisdom of the Law: Judicial Directions and Warnings in Sexual Assault Trials [2005] UNSWLawJ 261 at 265, Dorne Boniface explained:

The corroboration warning requirement in sexual assault cases reflected two assumptions: first, that sexual assault complainants frequently make false allegations due to perhaps neurotic fantasy, shame or spite; second, that it was especially difficult in the context of one person’s word against another’s, with little other evidence to determine the conflict, for juries to detect false allegations.

330    Ms Boniface went on to observe the first assumption proved to be false:

As the problem of non-reporting of sexual crimes became recognised, the idea that sexual assault allegations are easy to bring and sustain to conviction became progressively more implausible. The practical and psychological barriers to taking matters to court were recognised and the necessity of confronting artificial evidentiary hurdles began to be questioned. In addition, the moral climate was changing. The social consequences of extra-marital sex were diminishing and there was no longer any reason to support the assertion that false allegations were widespread and that they necessitated an automatic corroboration warning in all sexual assault prosecutions.

The utility of the corroboration warning was also questionable. As a contribution to rational adjudication the warning was either superfluous where the complainant’s unreliability was obvious or useless where the complainant was a skilled, convincing liar. It also gave the harmful impression that the criminal justice system unfairly discriminated against sexual assault complainants.

331    Now, it is well recognised that people may not complain about a sexual assault for a host of reasons. And this knowledge has contributed to legislative changes. Currently, in New South Wales, for example, judges are required to instruct juries in prescribed sexual assault cases that a delay in complaining or a failure to complain does not necessarily indicate that the allegation is false as there may be good reason why a victim of a sexual assault may hesitate to complain or refrain from complaining. Judges are prohibited from directing juries that delay in complaining is relevant to a complainant’s credibility unless there is sufficient evidence to justify such a direction. See Criminal Procedure Act, s 294.

332    Furthermore, sexual harassment is notoriously under-reported. In January 2019 Professors Paula McDonald and Sara Charlesworth, of the Queensland University of Technology and RMIT University respectively, explained in a submission made to the National Inquiry into Sexual Harassment in Australian Workplaces conducted by the AHRC and admitted into evidence without objection:

Those who experience workplace sexual harassment are often caught in a bind when deciding on the timing of making a complaint to their employer. When they report the behaviour immediately, observers perceive them as more credible and the harasser as more responsible. Yet for an individual to reach a point where they are ready to make a complaint, they must first process what has happened to them, weigh up the available options open to them, and determine the possible detriments that may result from making a complaint. Consequently, there can be a significant, yet legitimate delay between experiencing sexual harassment and reporting it, if indeed it ever gets reported.

(Footnotes omitted.)

333    In her report to this Court, Prof Charlesworth noted that the 2018 Sexual Harassment Prevalence survey conducted by the AHRC showed that fewer than one in five (17%) of survey respondents who had experienced sexual harassment made a formal report or complaint.

334    The likely explanation for the absence of a contemporaneous complaint in the present case is that at the time Ms Taylor did not take the slap seriously. That is not to say that she welcomed it. I will come to that later. It is only with the benefit of hindsight, after she learned of his true feelings for her, that she took umbrage. Moreover, she loved her job and did not want to lose it. It was only when his behaviour towards her changed after she had rebuffed his renewed expression of his feelings and she had stopped work, that she summoned up the courage to do something about it.

335    I attach no weight to the fact that in the letter of 28 August 2020 the episode on 23 July 2019 is described as a touch rather than a slap in the light of the history given to Dr Karolina Yohendran in the consultation on 12 August 2020. The doctor’s notes relevantly recorded:

work place harrassment

groo and co jewlery

sexual harrassment boss

slapped on the bottom

336    I am comfortably satisfied that Mr Grew slapped Ms Taylor with a cupped hand on her right buttock in July 2019. Contrary to the submissions put on behalf of Mr Grew, her account had the ring of truth to it. As she recounted the episode, she appeared to be reliving rather than reconstructing the event. Moreover, her account was far more credible than Mr Grew’s. If his version were true, there would be no occasion for him to apologise at all, certainly not twice. In fact, there would be no reason to remember the event. Indeed, it is unlikely he would even be able to remember it.

Did Mr Grew make unsolicited comments to Ms Taylor about her appearance between October and December 2019 as alleged?

337    While Mr Grew denied ever saying to Ms Taylor words to the effect that she has “a really nice body”, it is an agreed fact that he told her she had “a beautiful body”. The difference is immaterial.

338    There is also no dispute that Mr Grew sent a text message to Ms Taylor in which he referred to her as “perfect” and “100% perfect” and another in which he told her she looked “amazing” that day.

339    Mr Grew denied telling Ms Taylor that she had “bedroom eyes” in a provocative tone or otherwise in a conversation in November 2019. It is true that this specific allegation was not mentioned in the letter from Ms Taylor’s solicitors on 28 August 2020 or in her complaint to the AHRC. But I do not accept that it was a recent invention as suggested by the cross-examination. Both the AHRC complaint and the letter included an allegation in or to the effect that “since October 2018, Mr Grew engaged in a course of conduct towards Ms Taylor of making persistent unwelcome advances toward her of a sexual nature”, which included “commenting on her physical appearance”. Ms Taylor may have been mistaken about precisely when the comment was made but I am persuaded that it was made during the period between October and December 2019 and in the context in which she said it was made. It is the kind of thing she would remember. It is an odd thing to make up. I consider Mr Grew’s denial to have been insincere.

340    It is preposterous to suggest that Ms Taylor solicited these comments and no such proposition was put to her. There is no room for doubt on the evidence that they were all unsolicited.

341    On the other hand, the allegation that Mr Grew told Ms Taylor that he liked “petite curvy brunettes” is not made out. Ms Taylor’s evidence was that words to that effect were uttered to a customer, not to her. In the circumstances it is unnecessary to determine whether or not Ms Taylor’s account was truthful, accurate or reliable. Even if it were, it is does not prove the pleaded allegation.

Did Mr Grew say to Ms Taylor the things she attributed to him in the conversations in the office on 6 January 2020 and in the car on 1 June 2020?

342    Since neither party made contemporaneous notes of the conversations, the evidence of each of them is obviously deficient. In these circumstances neither of them is capable of giving a complete account. It is true that Ms Vu, in her account of the conversation on 7 January 2020, tends to corroborate Mr Grew’s statement that Ms Taylor told him she needed time to process what he had said. Still, in view of the contemporaneous text messages and my impressions of the witnesses, I am satisfied that Mr Grew said the things Ms Taylor recalled or things to the same effect. I am confident that she was giving truthful evidence about both these events.

343    It follows that I find that on 6 January 2020 Mr Grew told Ms Taylor that he had developed feelings for her, which he could no longer keep to himself and wanted to share with her; that he thought she was the most beautiful woman he had ever seen; that they get along so well; that she could be both a friend to his children and his business partner; and that he could not find anyone else with the same qualities. I also accept that Ms Taylor made it plain to him that she was not interested in anything but a platonic relationship.

344    To the extent that it is inconsistent with Ms Taylor’s, I cannot accept Mr Grew’s account of the conversation on 1 June 2020. On his version, Ms Taylor’s reaction to Mr Grew’s remarks on this occasion, as evidenced by the contemporaneous report to her sister and supported by the contemporaneous text messages, makes no sense. It is out of all proportion to what Mr Grew claims to have said. It is far more consistent with the version given by Ms Taylor. And there is nothing else to account for it. Moreover, Ms Taylor’s account is also consistent with Mr Grew’s contemporaneous text messages.

345    It follows that I reject Mr Grew’s evidence that he did not press upon Ms Taylor in that conversation the feelings he had first revealed to her in January. I also accept Ms Taylor’s evidence that she did not mention her new boyfriend (Chris) to him at that time.

346    Ms Taylor’s account is also supported in both respects by Ms Vu’s evidence.

347    Ms Vu admitted in cross-examination to speaking with Ms Taylor about Chris on a number of occasions including at the time Ms Taylor began seeing him (about May 2020). Ms Vu admitted that Ms Taylor had indicated to her that she did not want Mr Grew to know about the relationship. Ms Vu also admitted that she told Ms Taylor that it was not fair that Mr Grew did not know. She said: “It’s better that he knows, so there’s no confusion”. Ms Vu also admitted that the reason she wanted him to know is that she assumed at that time that Mr Grew still had feelings for Ms Taylor.

348    In these circumstances it is unlikely that Ms Taylor would have disclosed the relationship to Mr Grew in the conversation on 1 June 2020. It is more likely that he learned about the relationship afterwards. This aspect of the conversation may have been merely a false recollection or it may have been a fabrication. It is unnecessary to decide which alternative is correct. Regardless, I am satisfied that Ms Taylor was truthful when she denied speaking to Mr Grew about Chris.

349    More importantly, Ms Vu’s evidence that she knew Mr Grew still had feelings for Ms Taylor tends to support Ms Taylor’s account over Mr Grew’s. While Ms Vu said that her knowledge was just “a personal assumption”, based on an intuition, it must have been based on her interactions with Mr Grew.

Which, if any, of the alleged conduct was of a sexual nature and/or a sexual advance and unwelcome?

The argument

350    Ms Taylor submitted that it is “abundantly clear” that Mr Grew’s conduct constituted sexual advances or other conduct of a sexual nature. She contended that this is not a case of “a mere declaration of a romantic interest”, emphasising the conversation she had with Mr Grew on 6 January 2020 and their text message exchange on 27 January 2020, the power imbalance between them and the number of unwelcome and unsolicited gifts “he showered on” her, vastly exceeding the number given to any other member of staff. She claimed that the evidence indicates that his feelings towards her started much earlier and that his gifts and comments he made to her about her appearance, beginning with the statement in October 2019 that she had “a beautiful body”, were indicative of those feelings. After declaring his feelings in January, he continued to buy gifts for her and then sought to pursue his interest in her again in June 2020, despite her rejection of his advances. Any reasonable person would have anticipated that she would be offended, humiliated or intimidated by his conduct.

351    Mr Grew submitted that the contemporaneous evidence did not indicate that any of the gifts were unwelcome and that his conduct did not constitute sexual advances or other conduct of a sexual nature. He argued that there was nothing sexual about the gifts that he gave Ms Taylor, many of them were for her birthday or Christmas, or otherwise designed by her and/or “identified” by Ms Taylor as an item that she wanted. He pointed out that most of the gifts were given before December 2019 when (he claimed) he developed feelings for Ms Taylor. He did not proposition Ms Taylor in the comments he made to her orally and over text. He submitted that the comments did not suggest or invite intimacy and, understood in their context, had no sexual connotations.

The gifts

352    In her amended statement of claim, the gift giving was pleaded under the heading “Unwelcome conduct of a sexual nature”, but the allegations relating to the individual gifts were that they were unsolicited, not that they were unsolicited and unwelcome. Moreover, Ms Taylor was rarely asked directly whether the gifts were welcome or unwelcome. Nevertheless, the parties agreed that one of the issues to be resolved was whether the gifts were unwelcome.

353    In her closing written submissions, Ms Taylor merely asserted that the gifts were unwelcome (at [21]), relying on her testimony about how she felt about receiving them. The respondents’ argued otherwise, pointing to the gratitude expressed by Ms Taylor in her text messages; her requests for the making of some of the jewellery; and her failure to decline or return any gifts at any stage.

354    In reply, Ms Taylor submitted that it was “entirely artificial … to take each gift, comment or conversation out of its context” and that the chronology established that Mr Grew engaged in a course of conduct which was “unwelcome and clearly constituted an overall sexual advance towards [her] or conduct of a sexual nature”.

355    I agree that it is artificial to take each gift, comment or conversation out of context but the agreement the parties reached about the issues invited such an approach. Indeed, Ms Taylor’s barrister, Mr Mahendra, made it clear in his closing argument that the case he was advancing was that each act of gift giving was unwelcome conduct of a sexual nature which amounted to sexual harassment. He told the Court that he relied upon the gift giving “both individually and collectively”. Nevertheless, he said that he largely relied upon the gifts and comments for context rather than as individual instances of unwelcome sexual conduct. As he put it in opening argument with respect to the gifts:

[T]hose matters, to a large degree, simply provide context in which the ultimate sexual harassment occurred, and we say that ultimate sexual harassment really were the sexual advances that were made in January and then ultimately in June, which has caused Ms Taylor to suffer such an injury.

356    None of the conduct in question in the present case was explicitly sexual in the strict sense. Apart from the slap on the bottom, Mr Grew was not said to have touched Ms Taylor in an inappropriate way. Nor did he ask her for sex. But that is by no means the end of the case.

357    The first question is whether any of the gifts were unwelcome.

358    I reject the submission made in closing submissions for Ms Taylor that it was not open to the respondents to argue that any of the following gifts were unwelcome because they had not challenged her “direct” evidence about how she felt when she received them: the Chanel coin purse; the emerald and diamond platinum ring; the Hydra ring; the diamond cluster necklace incorporating the peach sapphire; the jade bangle; the Gemini stud earrings; the silver signet ring; the Stuller gold earrings; the massage; the $2,000 cash; and the MECCA gift card. That is simply untrue.

359    In the case of the Chanel coin purse, Ms Bulut, counsel for the respondents, directly put to Ms Taylor in cross-examination that, “by keeping it and accepting it and saying thank you, it was a gift that [she] welcomed”. As for the necklace, Ms Bulut put to Ms Taylor that she had no reluctance in accepting it as a gift, did not insist on paying for them, and did not return them. With respect to the jade bangle, Ms Bulut took Ms Taylor to her text response and put to her that it was an expression of her appreciation for the gift.

360    In the case of the emerald and diamond platinum ring, Ms Taylor did not testify that it was unwelcome. There was therefore nothing to contradict. In the case of the Hydra ring, Ms Taylor testified she felt uncomfortable and she was challenged on the explanation she gave for her alleged discomfort. In relation to the Gemini stud earrings, it was put to Ms Taylor that, by thanking Mr Grew in the way that she did, she was indicating her appreciation and gratitude for the gift. In the case of the silver signet ring, Ms Bulut put to Ms Taylor that she gave no indication to Mr Grew that she did not want it and that she never returned it. Similar propositions were put to Ms Taylor in the cross-examination in relation to the other items. True it is that Ms Bulut did not go further and put to her that the reason she did neither was because the gift was not unwelcome, but I do not consider that the respondents are precluded from asking the Court to draw inferences from her answers to the questions that were put.

361    It is impossible to conclude that all the gifts were unwelcome. Ms Taylor did not give evidence to support such a conclusion and the contemporaneous documentary evidence suggests otherwise.

362    In some instances, Ms Taylor testified that she felt awkward and/or uncomfortable to receive the items. That can be taken as an indication that they were unwelcome, as Mr Mahendra clearly inferred. She testified that the gifting of the Hydra ring made her feeling “uncomfortable and overwhelmed”, that the six stone diamond necklace and the diamond cluster necklace made with the peach sapphire made her feel “a little awkward” and “overwhelmed at the same time”, and that the gifting of the silver signet ring made her feel “awkward” and “uncomfortable”. In relation to the jade bangle, she felt “extremely awkward” because of her belief that Mr Grew had given the same bangle to his ex-wife. In the case of the Michael Kors bomber jacket, that she remembered suggesting for Mr Grew’s ex-wife the previous Christmas, she testified that she felt “really uncomfortable”. The contemporaneous text messages between Ms Taylor and her friend, as well as the messages between Ms Taylor and her sister, tend to support that conclusion. Finally, she said she felt “extremely awkward” about the fact that, unlike Ms Vu, she was not required to pay for her Gemini stud earrings.

363    Ms Taylor did not say or indicate that the white gold hammered band ring, 5 mm silver ring or the 10 mm silver ring were unwelcome. In relation to the gifting of the Chanel coin purse, the emerald and diamond platinum ring, the peach sapphire, and the Gemini stud earrings, Ms Taylor gave evidence that she felt shocked and/or overwhelmed to receive each of them. In relation to the $2,000 cash, she testified that she was “a bit tired of saying no” and said that she was “starting to feel anxious” about her employment at Grew & Co.

364    In her evidence in chief, Ms Taylor did not say that the massage was unwelcome but the matter was raised in cross-examination and in evidence in reply she made it clear that it was. Despite Ms Taylor’s evidence, I am unable to accept that the massage was unwelcome. I consider it more likely than not that Ms Taylor’s text messages genuinely reflected the way she felt at the time. Mr Grew did not massage her or offer to do so. He booked her in with a masseuse. I can see no reason — even in context — why she would have reacted in any way other than with gratitude.

365    Ms Taylor did not testify, in terms, that the MECCA gift card was unwelcome. In her evidence in chief, she was not asked how she felt to receive it. In cross-examination, however, it was put to her that she did not decline the gift or indicate at all to Mr Grew that she did not want it. She rejected the proposition, replying (at T186):

Not in those words. Me suggesting him to use it on himself was – was that.

366    Similarly, when it was put to her that she had no difficulty accepting the gift, Ms Taylor replied (at T189):

Not necessarily. I tried to get him to use it, and then I accepted it after that.

367    An unwillingness to reject the gifts is understandable, given the employment relationship and Ms Taylor’s unchallenged concern not to offend Mr Grew. She might well have felt conflicted. She repeatedly said, and I accept, that she was concerned about offending Mr Grew because she liked her job and wanted to keep it. True it is, she did not return the items. But the fact that Ms Taylor did not return any of the gifts is not conclusive. She was never asked whether she wore any of the items of jewellery or the bomber jacket. With one exception, there is no evidence to indicate she wore the jacket or the jewellery (other than in the store) or that she ever made use of the purse or the MECCA gift card. She could have sold them or given them away. On the other hand, for all I know she might make use of all the gifts. The exception is the emerald and diamond ring. Her desire to have it remade into gold because she had changed her jewellery preference from silver to gold suggests that she had worn it or would have worn it if it were remade. Also later, after Mr Grew demanded its return or payment in lieu, she elected to pay him rather than return it.

368    Nevertheless, with the exception of the bomber jacket, I find it difficult to accept that any of the gifts were unwelcome before Ms Taylor knew that Mr Grew had feelings for her, that is before 6 January 2020. In all likelihood, her evidence to the contrary is a reflection of how she subsequently felt about them. In other words, it is affected by hindsight.

369    Two gifts were presented to Ms Taylor after Mr Grew’s confession in January 2020. They were the gold signet ring and the Stuller gold earrings. In relation to the former, Ms Taylor testified that she was “shocked” to receive it and, in light of Mr Grew’s confession and the anxiety it caused her, she felt “trapped” in a “difficult situation”. In relation to the latter, Ms Taylor said she felt “a bit awkward and uncomfortable”. Having regard to the time that each of these gifts was presented to her, during March 2020, I accept that they were unwelcome.

370    The next question is whether the gift giving amounts to a sexual advance or other conduct of a sexual nature.

371    Plainly, the mere act of gift giving is not sexual in nature.

372    The evidence is not sufficient to establish that Mr Grew had any romantic interest in Ms Taylor before July or August 2019. Some 10 gifts were given to her before this time. Eight were given after this time.

373    Although most of the gifts were items of jewellery, Mr Grew was a jeweller and Ms Taylor worked in the jewellery business. Apart from the jade bangle, the peach sapphire and the Stuller gold earrings, all the other pieces were made by Mr Grew, or another jeweller at Grew & Co, often at Ms Taylor’s request and he merely declined to charge her for them. I do not consider that in these circumstances the giving of jewellery, even if unwelcome, amounts to conduct of the kind described in s 28A. The position might very well be different in other circumstances.

374    Nor do I consider that the $2,000 cash gift, the MECCA gift card or the massage amounted to a sexual advance or other conduct of a sexual nature. There was nothing sexual about any of these items or the circumstances surrounding their presentation, whether considered individually or collectively. And I do not consider that any of these gifts were, or were part of, an attempt by Mr Grew to ingratiate himself with Ms Taylor.

375    On the other hand, apart from the cash, the gift card and the massage, I am persuaded that the gifts Ms Taylor received after July 2019 (the Gemini earrings, the two signet rings, the Stuller gold earrings and the Michael Kors bomber jacket) were expressions of Mr Grew’s affection for Ms Taylor and his desire to enter into a romantic relationship with her and were therefore, both individually and collectively, either a sexual advance or other conduct of a sexual nature. In substance, they were part of an attempt to woo her.

The slap on the buttock

376    The slap on the buttock in July 2019 was certainly unwelcome. Not only did Ms Taylor give evidence to this effect but Mr Grew’s apologies indicate that he realised it was (cf. Poniatowska at [295]). In other words, Ms Taylor’s evidence on this matter was corroborated by the contemporaneous evidence. I am also satisfied that this was “conduct of a sexual nature” within the meaning of the term in s 28A. The respondents did not submit otherwise. In the circumstances of this case, I consider it was an expression of Mr Grew’s physical attraction to Ms Taylor even if, at the time, he may not have recognised it as such. It was in the nature of horseplay, of the kind McCallum J doubtless had in mind in Vitality Works. It was very different from a tap on the shoulder or arm, for example.

The comments about Ms Taylor’s appearance

377    I do not consider that these remarks were sexual advances. Rather, they were expressions of Mr Grew’s feelings about, and/or for, Ms Taylor. I am satisfied, however, that they were unwelcome and, taken collectively, are properly to be regarded as “other unwelcome conduct of a sexual nature”. Each of them made Ms Taylor uncomfortable. The fact that she made no contemporaneous complaint to him about any of them is neither here nor there. Mr Grew’s attempt to normalise some of them by leading evidence that he had complimented and made “reassuring” remarks to other employees does not assist him. The comments went beyond reassurance and, while Ms Vu and Ms Nicholson-Black testified that Mr Grew would compliment them on their appearance, it is common ground that he did not go so far as to tell any other employee that they had a beautiful body, had bedroom eyes, or were perfect.

The overtures in January and June 2020

378    In closing argument, Mr Goot AO SC, who then appeared for the respondents, referred to Spencer v Dowling at 156 in which Hayne J doubted that an expression of love could always properly be said to be a “sexual advance” within the meaning of the term in s 20(1)(a) of the Equal Opportunity Act 1984 (Vic). He thought if saying no more than “I love you” was a sexual advance, that would appear to “stretch the meaning of ‘sexual advance’ beyond ordinary usage of the term”. Hayne J’s observations in Spencer v Dowling are of no assistance. Even if his Honour’s scepticism were justified, he was at pains to emphasise that “the question is one of fact and degree” and that he did not consider that it was not open to the Equal Opportunity Board to find that, when taken in context, a letter from an employer to his employee (in which he declared his love for, and desire for marriage and children with, his employee) constituted a sexual advance. Thus, a “sexual advance” may include a declaration of love; it all depends on the context.