Sexual Harassment in the Workplace - Essay Example

At the very beginning of this complex case I asked myself the question: What is sexual harassment? Also, what are the differences between sexual harassment in the workplace and normal social behaviour? The Sex Discrimination Act provides the following definition: "any unwelcome sexual advance is a necessary condition," but not sufficient enough in and of itself. When a negative response is not heeded to, the resulting hostile working environment forms the basis of sexual harassment. During this opening statement I will explain in great detail many of the unwelcome sexual advances I have experienced since 2008 and also how I suffered academically. I will attempt to prove all this today and over the following nine days, but first I would like to tell you some more about who the victim in this case really is. Ms. Chen joined the staff at Monash University as a teacher and research academic in May of 2008. Before that time Ms. Chen had worked at the Imperial College in London and also at the University of Cambridge. She had gained two PhDs; one from Imperial College in 2007 for Biomaterials and the other from the University of Science and Technology of Beijing in 1992 for Metallurgical Physics. Professor Sian Harding from the Imperial College of London made the comment that "Qizhi (Ms. Chens nickname) is an exceptionally bright and creative scientist." In terms of her teaching capabilities, Professor Alexander Bismarck, also from Imperial College, remarked that Qizhi is "a gifted teacher." To put it simply, Ms. Chen is an independent thinker, hard-working academic and strong-minded woman who has carved out a fine academic career for herself. In contrast to many female academics who choose to put their career above a family, Ms. Chen is a very typical conservative Chinese woman with a strong family life. She also has a 12-year-old son, who is the apple of her eye. In conjunction with pursuing her academic goals and objectives, Ms. Chen is of the belief that being a mother with a caring family around her is considered to be the greatest achievement a woman can make. In line with her cultural values, Ms. Chen possesses the traits of loyalty, decency, and honesty. Also, Ms. Chen balances her work life and personal life in a way that allows her to have healthy relationships with everyone who she comes across. She is a woman who is quick to forgive and only make judgements based on facts rather than conjecture. In the workplace, Ms. Chen prefers an inclusive approach whereby knowledge can be shared for the benefit of all; this is also evidenced by her many multi-author publications. Although she can be flexible at times, Ms. Chen lives her life based on a strong set of principles that she strictly adheres to. She is open to competition, but only in a way that does not pull other people down and instead encourages them to reach their potential. If sexual harassment and bullying is expected of a team player, then Ms. Chen would be proud not to label herself as such. Now I will discuss Ms. Chen interactions with Professor Simon. Since June of 2008, Professor Simon has acted inappropriately sexually towards Ms. Chen on a number of different occasions. This includes improper touching, sexually suggested comments, stalking, and blackmail. Like many sexual harassment cases, many of these disturbing incidents occurred behind closed doors. Although there were many incidents, today I will just focus on three: "peace and quiet" sexual advances, stalking at the Caulfield campus, and also blackmail during a business trip. After this I will clearly show six occasions where Ms. Chen made it clear that she did not welcome Professor Simons advances. On the 26th of August, 2008, Professor Simon requested Ms. Chen to attend a 5 p.m. meeting, something which she agreed to. Just before the meeting was about to commence, Professor Simons wife called and the pair talked for ten minutes. Ms. Chen suggested that it was not appropriate for her to meet with Professor Simon at that time, be he insisted the meeting would only take ten minutes. Professor Simon took this response as a rejection, and his body language showed his great displeasure. The very next day Professor Simon sent out an email detailing Monash Universitys sexual harassment policies. The following comment was included as part of the email: "Your urgent attention please. We need to take this subject matter seriously to stop breaches, either intended or unintended, from happening on campus." Ms. Chen was still very concerned about Professor Simons upset reaction the night before and also the email that was subsequently distributed to all staff. Wishing to avoid any misunderstandings, Ms. Chen sent Professor Simon an email asking for a meeting at another time of his convenience. Professor Simon responded, "I want to talk with you, in peace and quiet, for much longer than ten minutes." In response, Ms. Chen did not address the "peace and quiet" point, but she did make clear that it was her who had suggested another time for the meeting and not Professor Simon as he had claimed. Ms. Chen was not completely sure of Professor Simons intentions at that point, particularly in regards to spending time together in "peace and quiet." However, the sexual intentions of Professor Simon became much clearer on the 14th of June, 2010. Roughly around the date of the 14th of June, 2010 and in the context of a discussion regarding a grant application with VicHealth, Ms. Chen suggested to Professor Simon that he lead her application based on one of her research topics. At the conclusion of that meeting, Professor Simon commented to Ms. Chen once again of words to the effect, "Shall we have some peace and quiet?" Ms. Chen immediately ignored this statement and left the room. Ms. Chen felt that it was necessary to address this continual insistence on the pair meeting privately together, yet Professor Simon remained silent when she brought the issue up; this is typical behaviour of sexual harassers and bullies. For the second incident, Professor YiBing Cheng will testify. On the 9th of June, 2010, following a postgraduate conference at the Caulfield campus, Professor Simon followed Ms. Chen and Professor Cheng to the latters car. Professor Cheng said to Ms. Chen words to the effect of "Whats George doing here?" "Do you have problems in the department?" and "Let me know if you need any help." Finally, for the third incident, Professor Simon tried to blackmail Ms. Chen into having consensual sex with him. Ms. Chen will prove the following conduct with the use of Professor Simons contemporaries notes and also Virgin Blue affidavits and subpoenaed documents. In February of 2011, Professor Simon told his wife in advance that Ms. Chen would behave in an inappropriate manner during the APS conference. However, during the conference Professor Simon was the one who went out of his way to try and instigate contact with Ms. Chen by charming her. Eventually he won her over because Ms. Chen believed that he wanted to put the relationship right. Another aspect was the fact that Professor Simon was Ms. Chens direct line manager and thus had managerial power over her. On the 16th of February, 2011, Ms. Chen left the conference one day early and in a matter of supposed coincidence Professor Simon also left that same day and caught the same flight as Ms. Chen. Once Ms. Chen realized this fact, she suggested that the pair share a taxi together so that they could save on transportation costs. Professor Simon agreed to this. Once at the airport and waiting for their flight, Professor Simon suggested that they went to a birthday conference in Europe, but Ms. Chen considered it a waste of time. Between 2.30 p.m. and 3 p.m. Ms. Chen completed her flight check-in. Professor Simon decided to redo check-in even though he had already checked-in online. He gave the reason that he wanted to "confirm my seat because sometimes it can be problematic." Professor Simon also checked-in his small carry-on bag, the same one he used for work. Once seated on the airplane, Ms. Chen and Professor Simon ended up sitting next to each other (Ms. Chen in seat 8D, while Professor Simon was in seat 8E). Ms. Chen said "do you want to change to my aisle seat?" Professor Simon declined and chose to squeeze into the middle seat between Ms. Chen and another lady; most of the 3-seat rows on the airplane only contained two passengers. During the flight Professor Simon began to read from a magazine found in the seat pocket in front of him. Ms. Chen noticed him intensely staring at a page of a woman advertising white facial cream, so she said "You read this kind of magazine?" Professor Simon replied in the affirmative, so the pair began a conversation about cosmetics. However, the conversation quickly changed to one of a more personal nature. Professor Simon said words to the effect of "I am a father and only staying in the marriage for my kids. Are you okay with that?" Ms. Chen responded with the phrase "not for a woman like me." Ms. Chen has detailed explanations of the six occasions where she rejected Professor Simons unwanted sexual advances. These correspondences can be backed up by emails and also a witness, Mr. Ian Wheeler. On the 18th of February, 2011, at roughly 11:41 a.m., Ms. Chen sent Professor Simon an email to explain in no uncertain terms that his conduct was not at all appreciated or appropriate. The email included such phrases as "no dating with a married man and no private relationships in my career." Ms. Chen meant to imply that she did not want to get involved sexually with a co-worker, but she was too embarrassed to get this point across directly. On or about the 10th of October, 2011, at approximately 8:52 p.m., Ms. Chen once again sent an email to Professor Simon asking him to stop his inappropriate conduct. The email included many statements, such as "I am not the type you think or are looking for." On or about the 8th of January, 2012, at around 8:52 p.m., Ms. Chen sent another email to Professor Simon. The message included the following excerpt: "You did it subtly, making all incidents look like accident due to your carelessness. However, your peace and quiet email and other signals gave me the impression that you wanted sex from me. I am proud of the principles that I stand for, which are no dating with a married man and no private relationships with any of my co-workers." In response to Professor Simons email on the 3rd of February, 2012, at about 7:20 p.m., Ms. Chen said among other things "when you requested to spend long hours with me in peace and quiet, I declined through silence." In 2012 the Materials Engineering Department moved out of the old Bld 19. The majority of academics were situated in Bld 82, while the departmental general office was moved to Bld 69, which was where Professor Simons office was located as the Head of Department. On the 7th of June, 2012, Mr. Ian Wheeler and Ms. Hillary Brandon met with Ms. Chen to discuss her proposed new office location. It was suggest that she move to Bld 69 across from Professor Simons office. Ms. Chen strongly gave her disapproval, and so Ian Wheeler and Hillary Brandon said "that was Georges idea. We have to talk with George and make another arrangement." Eventually Ms. Chen was moved to Bld 82. On the 20th of February, 2013, Ms. Chen discovered that her office one located next to one of Professor Simons offices on level 1 (as the Deputy Dean Professor Simon had two separate offices). This was despite the fact that there were many empty office spaces in the Mat Eng Department in the new building and also unoccupied offices near Ms. Chens students. Ms. Chen did not realize these two empty offices, Rooms 105 and 112, until the 27th of August, 2013. After Ms. Chen submitted a request to move offices, she was permitted to relocate to level 3. In May of 2013 Ms. Chen was assigned by the departmental coordinator to conduct an interview of a final year students project alongside Professor Simon. Ms. Chen rejected the assignment. Based on the detailed events, Professor Simon has engaged in unlawful sexual harassment by breaching Sections 5, 14, 28A, and 28B of the Sex Discrimination Act of 1984 (Cth). On the 31st of May, 2010, Professor Chris Davies pulled Ms. Chen away from a staff meeting to show her an inappropriate iPad game. On a departmental discussion day in Room G03 of Building 59 on the Clayton Campus, Professor Davies took Ms. Chen away from the other members of the Department of Materials Engineering. He showed her an iPad game where the objective was to use an iPad pen to drag sperm through water to reach four boxes in the four corners of the screen. Under these circumstances, Professor Davies has participated in unlawful sexual harassment in breach of Sections 5, 14, 28A, and 28B of the Sex Discrimination Act of 1984 (Cth). Since mid-2010 Ms. Chen has been victimized by working in a high hostile working environment. I will only focus on two types of misconduct; the first is procedural irregularities in the academic promotion round of 2011 and the second is incorrectly awarding applications to target Ms. Chen and ultimately disadvantage her position at work. During the period of March to June 2011, prior to the deadline for that years academic promotion round, Professor Davis, the Associate Dean for Research Training, did not recruit two of Ms. Chen brightest students due to the use of incorrect policies. At that time, Ms. Chen had 2.9 research students. As such, Professor Davis conduct effectively stopped the number of Ms. Chens students from reaching the promotion criteria of 4.6. This directly contributed to the denial of Ms. Chens promotion. Additionally, the faculty provided an incorrect version of the Academic Performance Standards for the Engineering Faculty. Professor Simon, the Head of Department and also academic supervisor of Ms. Chen, advised her to not include her achievements preceding Monash University. This incorrect advice significantly disadvantaged Ms. Chens application materials, and it also contributed directly to the subsequent denial of Ms. Chens promotion. Professor Murray Rudman, the Associate Dean for Research, made factually incorrect mistakes in his report for Ms. Chens application, and this undervalued Ms. Chens past performance; all of these errors were corrected after a request from Ms. Chen. On the 5th of September, 2011, Ms. Chen wrote a letter to Monash University to seek a reversal of her case decision. Ms. Chens request for a rehearing was based on procedural irregularities, such as an incorrect version of the Academic Performance Standards for the Engineering Faculty and also Professor Simons wrong advice. Adhering to Monash Universitys policies, Ms. Chen provided the appeals committee with evidence of these procedural irregularities at the opening stage of the appeals process. On the 26th of September, 2011, Ms. Chens case for a rehearing was dismissed at the first step of the process, which was an investigation of procedural irregularities) based on the fact that the issues raised did not amount to any procedural irregularity resulting in a disadvantage. On the 13th of December, 2011, Ms. Chen met with Professor Sridhar, Mr. Andre Piculier, and Miss Kyla Evans. At that meeting Professor Sridhar said the following to Ms. Chen: One of Ms. Chens students in the Masters program, Ms. Shuling Liang, produced six journal publications of outstanding quality. However, her application for the "Award of Excellence in a Masters Thesis" was turned down by the faculty in April of 2012. The awards that research students pick up are an important indicator of the academic performance of the supervisor. In May of 2012 an announcement was made regarding Early Career Researcher, an award application scheme. This long-running program was based on achievements over a five-year period. It used to be that the announcement was made within the faculty, yet that year it was the responsibility of each Head of Department. In Ms. Chens department, Professor Simon said that the award would only take into account research conducted during the period of 2009 to 2011. In other words, no research before 2009 or in 2012 would be considered. This smaller timeframe reduced Ms. Chens chances to receive the award, as she had many high-impact publications during 2008 and also 2012. In the department Ms. Chen was only one of two academics who were eligible for the award and had the necessary experience. Professor Simon had never previously used such a small qualification period before, and this narrow scope was not used in other departments. This incorrect policy was only applied in 2012 and only in Ms. Chens department. Based on the circumstances mentioned already, Professor Simon and Professor Davis have both engaged in unlawful sexual harassment related to victimisation in breach of Section 94 of the Sex Discrimination Act of 1984 (Cth). Also, Mr. Rudman, Mr. Sridhar, and Mr. Adam Shoemaker have all engaged in unlawful sexual harassment related to victimisation in breach of Section 105 of the Sex Discrimination Act of 1984 (Cth). Finally, the Engineering Faculty has engaged in unlawful sexual harassment related to victimisation in breach of Section 106 of the Sex Discrimination Act of 1984 (Cth). In terms of the credibility of the respondents, according to Section 131 of the Evidence Act of 1995 (Cth), there are exceptions to the statutory rule protecting "without prejudice" communications. There are a number of exceptions to the common law "without prejudice" rule, including where there are allegations of misleading and deceptive conduct. Also, contractual terms in mediation agreements can give no more protection than given by common law. The communication between the two parties in the process of Monash Universitys internal grievance procedure and the Australian Human Rights Commission was not court-ordered mediation. As such, this communication was not subject to Section 53B of the Federal Court of Australia Act or 1976 (Cth), which provides absolute protection to any admissions made during mediation from being admissible as evidence in any court of law. Please refer to Justice Landers decision in Pihiga Pty Ltd v Roche [2011] FCA 240. During the conciliation, the respondents knowingly provided incorrect information by claiming "two of many such emails." It is this misrepresentation that caused a significant increase to legal costs for the applicant, and thus contributed to the failure of conciliation. The sexual harassment suffered and hostile working environment experienced have cause hug emotion pain and psychological suffering for Ms. Chen. Also, Ms. Chens academic development has been delayed for two years. The applicant wishes to ask for four things: an apology, an upgrade of Ms. Chens Level D from D3 to D1 (where she would have rightfully been if not for sexual harassment), legal costs totalling $50,274, and medical costs totalling $562. The evidence in this case shows that Professor Simon stalked Ms. Chen and Professor YiBing Cheng at the Caulfield Campus, and he also tried to talk Ms. Chen into consensual sex so as to change the nature of the issue from one of sexual harassment to an affair. The evidence also shows that Professor Davies played an inappropriate sperm game on his iPad for the viewing of Ms. Chen in the workplace. The evidence will ultimately show that the Faculty of Engineering chose an improper approach to address the above issues, which was one of constructive dismissal. The faculty has the legal liability to respond to what has happened. I request your honour that you find the legal liability of the respondents to be in their conduct. The applicant is only asking for what she feels she deserves: an apology, compensation for legal costs, recovery of lost wages, and an appropriate academic promotion. The issues presented as part of this case are important for the system of justice in this country and not just the applicant, Ms. Chen, alone. Read More