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Sexual harassment, elements

Zenkova v Al Fahdawi [2010] NSWADT 272. Isenberg, JM.

12 It falls to Ms Zenkova to establish:

Having regard to all the circumstances, that a reasonable person would have anticipated that Ms Zenkova would be offended, humiliated or intimidated by that conduct.

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41 In this matter there is a fundamental problem: Ms Zenkova has made serious allegations of sexual harassment against Mr Al Fahdawi which he vehemently denies.

In Horman v Distribution Group Ltd [2002] FCA 219 Emmett J approved the following statement concerning the acceptance of evidence in cases where there is such a dilemma:

"33 Tribunals and Courts of Law are frequently asked to decide which of two versions of a series of facts they accept. It is often a very difficult task particularly where both witnesses are credible. The decisions are made with the benefit of a number of factors. Perhaps the most important is each witnesses' demeanour in the witness box, his or her method of giving the evidence, the way questions are answered in cross-examination, the willingness to acknowledge the possibility of error and changes in recollection due to the passage of time.

Other matters that would be looked at include the interest that the witness might have in the outcome of the proceedings and the inherent likeliness or unlikeliness of the evidence when considered with the background of the known facts.

Finally, most Tribunals or Courts seek to find some form of corroboration from other evidence of whatever nature. The decision that is made is not always one between believing one witness and not believing another or holding that one witness is telling the truth and the other is lying.

More often than not the decision comes down to the preference of one recollection over another. Recollection is notoriously unreliable."

50 We find Ms Zenkova to be a witness of truth and accept the conduct of which she has complained, in each instance, occurred.

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52 The applicant bears the onus of establishing on the balance of probabilities that the conduct occurred was of a sexual nature and was "unwelcome": Re Aldridge v Booth [1988] FCA 170. In that case Spender J described ‘unwelcome’ as advance, request or conduct which was not solicited or invited by the employee, and which the employee regarded the conduct as undesirable or offensive.

53 In Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 the Full Federal Court in respect of the same provisions in the Sex Discrimination Act 1984 (C'th) held:

But it is not enough that the conduct merely be unwelcome sexual conduct. Unwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment. The word "harass" implies the instillation of fear or the infliction of damage; as is indicated by the definition of the term in the Macquarie Dictionary: "1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment, as with troubles, cares, etc.

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65 There is no requirement that unwelcome sexual conduct must occur more than once in order to amount to ‘sexual harassment’: per Wilcox J in Hall v A & A Sheiban Pty Ltd.

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We have come to the view that damages of $20,000.00 would constitute a reasonable remedy given Ms Zenkova’s evidence and the evidence of Dr Henson.

 

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