Is an Asia womanentitled to have equal opportunities in a male-dominated engineering field and keep her dignity in Australia?
At the very beginning of this extraordinary tough journey, I questioned: what is sex harassment? What is the difference between sex harassment in workplace and normal social behaviour? After extensive reading, it became clear to me that “any unwelcome sexual advance”, a definition of Sex Discrimination Act (SDA)is a necessary condition, but not sufficient. When the “no” is not accepted, the subsequent hostile working environments (that is victimisation conducts) form the sufficient condition of sex harassment. In this opening statement, I’m going to describethe unwelcome sexual advances and subsequent academic bully as a result of my rejection since 2008, which are what I shall prove in the next 9 days. Before this, I’d like to tell you who the applicant is.
1. The Applicant
Ms Chen joined Monash University as a teaching-research academic in May 2008. Previously, she was also employed by Imperial College London and the University of Cambridge. She was awarded two PhD, one in Biomaterials from Imperial College London in 2007, and the other in Metallurgical Physics from the University of Science and Technology Beijing in 1992.
Prof Sian Harding from Imperial College Londoncommented “Qizhi is an exceptionally bright and creative scientist.” On the teaching wise, Prof Alexander Bismarck from Imperial College London commented Qizhi as “a gifted teacher.”In short, Ms Chen is an independent, hard-working academic, who develops her academic career at her own right.
Unlike many women academic in the engineering field who choose to be single and never married, Ms Chen, a conservative Chinese woman,has a family with a 12 years old son, who is the meaning of her life. While pursuing her academic goal, she believes being a mother, having a family with kids is the greatest achievement of a woman. She values loyalty, decency, and honesty.
She is a well-balanced woman, having healthy relationships with previous employers and in her private life. She can sensitively sense other peoples demanding and deep-inside feeling, but not over sensitively read into too much. She makes her judgement based on facts.
At work, she is collaborative, cooperative, and inclusive at work, which is evidenced by her multi-author publications. Being reasonably flexible, Ms Chen is a person with principles. Competition should be conducted in a healthy way, via hard working rather than by sabotaging competitors. If to accept sex harassment and bully is what is expected from a team player, she is proud to be not such a team player.
2. Unwelcome sexual advances-George Simon
Since June 2008, Prof Simon conducted a serious of sexual advances towards Ms Chen, including physical touches of highly sensitive parts of woman,suggestive communications, stocking and trapping. Like most sex harassment cases, a number of incidents in this case happenedbehind closed door. Today I’ll focus on three incidents:“peace and quiet”, stocking at the Caulfield campus and trapping me during a business trip. Finally I will show Ms Chen’s sixabundantly clear rejections.
2.1. Requesting spending time with Ms Chen in peace and quiet
The applicant will use emails to prove the “peace and quiet” related sexual advance.
(a) On 26 Aug 2008, Mr Simon suggested a meeting with Ms Chen at 5pm to talk about her research, which Ms Chen agreed with no problem. Immediately before the meeting, Mr Simon’s wife called him. After the phone call, Mr Simon still insisted a 10-min meeting with Ms Chen. Ms Chen felt that since his wife called, it would be more appropriate to meet at another time, suggesting that “George, why not another time?” However, Mr Simon over-sensitively took this kind suggestion as a rejection, developing an upset face. The next day (27 Aug 2008), Mr Simon circulated an email about Monash University’s policy on sexual harassment, commenting that “Your urgent attention, please, …we need to take this seriously to stop breaches –intended or unintended –happening in this area.”. Ms Chen was concerned about the ‘upset-face’ and the email and, to avoid any misunderstandings, sent an email to Mr Simon explaining why she suggested meeting at another time. Mr Simon responded in an email to Ms Chen saying, “I want to talk with you, in peace and quiet, for much longer than 10 min”. In her reply to Mr Simon, Ms Chen did not respond to the “peace and quiet” point, but corrected him on one point that it is she rather than Mr Simon who suggested another time, which Mr Simon incorrectly claimed that he had suggested another time.
Ms Chen was not completely sure about the intent of Mr Simon when he expressed on 27August 2008 that he wanted to spent time with her “in peace and quiet”. However, the sexual intent of Mr Simon became clearer when he proposed this request to Ms Chen again on 14 June 2010.
(b) On or about 14 June 2010, in the context of discussions regarding a grant application via VicHealth, Ms Chen suggested to Mr Simon a possible application based on one of her research topics, and that she was willing to let Mr Simon lead the application.At the end of the meeting, Mr Simon said to Ms Chen words to the effect, “Shall we have some peace and quiet?” Ms Chen ignored the question and walked away quickly. Ms Chen felt necessary to communicate with Mr Simon about his “peace and quiet” suggestion, and suggested to Mr Simon, however, Mr Simon did not want to talk (no reply), a typical behaviour of sex harassers and bully.
Prof YiBing Cheng will testify about the following incident.
On 9 June 2010, following a departmental postgraduate conference at the Caulfield campus, Prof Simon followed Ms Chen and Prof Yibing Cheng, (“Prof Cheng”) to Prof Cheng’s car. Prof Cheng said to Ms Chen words to the effect, “What’s George doing here?” “Do you have problems in the department?” and “Let me know if you need help”.
2.3. TrappingMs Chen for consensual sex
Since Dec 2010 when his inappropriate behaviour became a subject of the department, Mr Simon attempted to trap Ms Chen for consensual sex. Ms Chen will prove the following conducts using Mr Simon’s contemporaneous notes and Virgin Blue affidavit and subpoenaed documents.
In Feb 2011, Mr Simon informed his wife in advance that Ms Chen would behave inappropriately during APS conference.However, during the APS conferenceProf Simon did not seek avoidance from Ms Chen. Instead he tried hard to find chances to charm Ms Chen during the APS conference. Eventually he successfully won her trust again –trusting that Mr Simon, her direct line manager who had the power over her job security, was offering peace. Ms Chen thus started to communicate with him again.
On 16 February 2011, following theConference, Ms Chen left one day earlier than the end of the conference and, apparently coincidently Prof Simon left on the same day and travelled on the same flight as Ms Chen. When Ms Chen realised this, she suggested that they share a taxi to save the cost. Prof Simon agreed.While waiting in the airport, Mr Simon suggested a birthday conference in Europe to Ms Chen. This reminded her of the abstract calling of that small, localised conference, which she did not think worth to spend time, money and energy for.
At around 2:30-3pm, Ms Chen completed her check-in first.Mr Simon decided to do recheck-in though he said he had done web check-in, explaining to Ms Chen to the effect, “to confirm my seat, sometime it could be problematic.” Ms Simon also checked in his small hand-carried black bag, the one he carries to work as well.
In the airplane, when Ms Chen located her seat 8D, she asked Prof Simon “where is your seat?” She surprisingly knew that Prof Simon’s seat was 8E next to hers and asked Prof Simon “Do you want to change to my aisle seat?” Prof Simon said “no.”Eventually, Prof Simon squizzed into the middle seat between Ms Chen and another lady, while most 3-seat rows of the airplane were sat by two passengers.
During the flight, Mr Simon took a copy of airline magazine from the pocket in front of him. At a moment he stopped at a page of a white bottle of woman facial cream, staring at the page for a while. Ms Chen asked him “you read this kind of magazine?” Mr Simon responded, “Yes, I do. I like this type of magazine.” Then they started a conversation about cosmetics. However, the conversation changed to a topic of respect. Mr Simon said to the effect, “I am a father, staying in the marriage for my kids.” …”are you OK with that?” Ms Chen responded in words to the effect “not for a woman like me”.
2.4. Ms Chen’s rejectionson six occasionsafter her probation
Ms Chen will prove the following claims using emails and witness Mr Ian Wheeler.
(a) On 18 February 2011 at about 11:41am, Ms Chen sent Prof Simon an email making it abundantly clear to Prof Simon that his sexual advances were unwelcome saying, amongst other things “no dating with married man and no private relationships (actually I mean no sex, but feel too embarrassed to say so directly) in my career life.”
(b) On or about 10 October 2011 at about 8:52pm, Ms Chen once again sent to Prof Simon an email saying, amongst other things, “I am not the type you think or look for.”
(c) On or about 8 January 2012 at about 12:40pm, Ms Chen again sent to Prof Simon an email saying, amongst other things, “you did it subtly, making all incidences look like accidents due to your careless. However, your “peace and quiet” email and all these signals consistently made me understand what you want from me: sex. I am now very proud of myself that I have been sticking with my principles: no dating with a married man and no private relationship with my direct line manager.” In response to Prof Simon’s email of 3 February 2012, on 3 February 2012 at about 7:20pm, Ms Chen said, amongst other things, “When you requested to spend very long hours with me peace and quiet, I declined with silence.”
(d) In 2013, the Materials Engineering Department was moving out of old Bld 19. The majority of academics allocated in new Bld 82, and the departmental general office allocated to bld 69, where Mr Simon’s office located as the HoD. On 7 June 2012, Mr Ian Wheeler and Ms Hillary Brandon met and discuss Ms Chen’s office location, and attempted to pursue Ms Chen to move to bld 69, in which Ms Chen’s office and lab would very close to Mr Simon’s office (directly opposite doors). Ms Chen sensed the motivation in advance due to the hint delivered by Ian Watkins’ song (see 11b), she strongly rejected to move to bld 69. At end of the meeting Ian and the lady said to the effect that “that’s George’s idea. We have to talk with George, and make another arrangement.” Eventually Ms Chen moved to Bld 82.
(e) On 20th Feb 2013, Ms Chen discovered that her office was located next to Mr Simon’s office at Level 1 as the Deputy Dean (Ms Simon had two offices during that period), though there were plenty of empty offices in the areas of Mat Eng Department in the new building, and there were unoccupied offices in the area of Ms Chen’s students (however, she did not realised the two empty offices Rm 112 and 105 until 27 Aug 2013). After Ms Chen made a request, her office was finally located to Level 3.
(f) In May 2013, I was assigned by the departmental coordinator to sit with Mr Simon to interview a final year project student. Simon did not seek any avoidance, instead keened to engage the activity. Ms Chen rejected the assignment.
In the circumstances, Mr Simon has engaged in unlawful sex harassment, in breach of Sections 5, 14, 28A and 28B of the Sex Discrimination Act 1984 (Cth).
3. iPad Sperm Game-Chris Davies (demonstrating with iPad)
On 31 May 2010, during a departmental discussion day in room G03 Building 59 at Clayton campus, Prof Davies escorted Ms Chen away from other present members of the Department of Materials Engineering and showed to Ms Chen a game on his iPad. The objective of the game was with an iPad pen to drag sperm through water to four boxes in the four corners of the screen.
In the circumstances, Mr Davis has engaged in unlawful sex harassment, in breach of Sections 5, 14, 28A and 28B of the Sex Discrimination Act 1984 (Cth).
4. Hostile working environment (victimisation)
Since around the middle of 2010, Ms Chen was subject to a serious of victimisation conducts,and has been working in a highly hostile environment. Today I’ll focus on two conducts (1) procedural irregularities in the academic promotion round 2011 and (2) incorrect policies of award applications targeting Ms Chen to disadvantage her position.
4.1. Procedural irregularities before, during,and after academic promotion round 2011
(a) In March-June 2011 prior to the deadline of academic promotion round 2011, Prof Davis, Associate Dean Research Training, failed to recruit two of Ms Chen’s prospective students using incorrect policies. At that time, Ms Chen had 2.9 research students. Hence, Prof Davis’s conduct effectively stopped the number of Ms Chen’s students to reach the promotion criteria 4.6, and directly contributed to the denial of Ms Chen’s promotion.
(b) The faculty provided an incorrect version of Academic Performance Standard of Engineering Faculty.
(c) Prof Simon, the Head of Department (HoD) and academic supervisor of Ms Chen, advised Ms Chen not to include her achievement pre-date Monash. Thisincorrect advice significantly disadvantaged Ms Chen’s application materials, and directly contributed to the denial of Ms Chen’s promotion.
(d) Prof Murray Rudman, Associate Dean Research (ADR), made factually incorrect mistakes in his report for Ms Chen’s application case, which undervalued Ms Chen’s performance, though all were corrected under the request of Ms Chen.
(e) On 5 September 2011, Ms Chen wrote a letter to Monash University seeking a rehearing of its decision. Ms Chen’s request for a rehearing was based on procedural irregularities, including above (b) and (c) items. By following relevant Monash policy, Ms Chen provided the relevant committee with evidence of procedural irregularities at the first step of the appeal process.
(f) On 26 September 2011, Ms Chen’s application for a rehearing was ruled out at the first step of the process (Investigation of procedural irregularities) on the basis that the issues of concern raised by Ms Chen did not amount to a procedural irregularity leading to a material disadvantage before conducting the evaluation of her achievements in her previous employments which was excluded from her promotion application due to the procedure irregularities.
(g) On 13 December 2011, Ms Chen met with Professor Sridhar, Mr Andre Piculierand Kyla Evans. At that meeting, Professor Sridhar said to Ms Chen, “…”
4.2. Victimisation due to making the complaints
(a) One of Ms Chen’s Mastersdegree students (Ms Shuling Liang) produced 6 quality journal publications. Ms Liang’s publications were exceptionally outstanding. However, her application for the “Award of Excellence in Master Thesis” was denied by the Faculty in April 2012. Awards of research students are also an important indicator of academic performance of the supervisor.
(b) In May 2012, there was an announcement about an award application scheme, known as Early Career Researcher (ECR). This scheme had been run for many years and the award was based on the achievements for the past 5 years. Previously, the announcement was circulated within the faculty. However, this year, it was announced by HoD within each department. In our department, Mr Simon announced thatthe award would be for research done in 2009-2011 inclusive (i.e. not prior to 2009, and not 2012). This narrowing of the scope of the scheme directly disadvantaged Ms Chen’s opportunity to obtain this award as she had a good number of publications in 2008, and had two high-impact publications in 2008 and 2012. In her department, she was one of two academics who were eligible and appropriately experienced for the award. Mr Simon had never applied this qualification to the scheme before, and the narrowing of the scope was also not used in other departments. The incorrect policy was only applied in 2012 and in her department.
In the circumstances,
• Mr Simon and Davis have engaged in unlawful sex harassment related victimisation, in breach of Section 94 of the Sex Discrimination Act 1984 (Cth),
• Mr Rudman, Mr Sridhar and Mr Adam Shoemaker have engaged in unlawful sex harassment related victimisation in breach of Section 105 of the Sex Discrimination Act 1984 (Cth), and
• the Engineering Faculty has engaged in unlawful sex harassment related victimisation, in breach of Section 106 of the Sex Discrimination Act 1984 (Cth).
5. Credibility of respondents
5.1. Deceive conduct during AHRC conciliation process
According to Section 131 of the Evidence Act 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; and
• contractual terms in mediation agreements can give no more protection than that given by the common law.
The communications between the two parties in the process of Monash university’s internal grievance procedure and Australina Human Right Commission were not a Court-ordered mediation. As such, the mediation was not subject to Section 53B of the Federal Court of Australia Act 1976(Cth) which provides absolute protection to anything said or admissions made during mediations from being admissible as evidence in any Court. Please refer to Justice Lander’s decision in Pihiga Pty Ltd v Roche  FCA 240.
During the conciliation, the respondents knowingly provided incorrect information by claiming that “two of many such email”. It is their mispresentation that caused a significantly amount of further legal cost on the applicant side, and thus contributed to the failure of conciliation.
The sexual harassment and, especially hostile working environment have caused huge emotional pain and psychological suffering, and hindered Ms Chen’s academic development two years behind. The applicant only asks for what she deserved:
1. To restore her dignity as a woman: apologies
2. To restore her dignity as a woman faculty:upgrade Ms Chen’s Level D from D3 to D1, which she should have been on if not because of sexual harassment and academic bully,and lost wages
3. Legal cost $50,274
4. Medical cost $562
The evidence will show that Prof Simon stocked Ms Chen and Prof YiBing Cheng at Caulfield, and that he attempted to seduce Ms Chen for consensual sex so as to change the nature of issue from sex harassment to affair. The evidence will also show that Prof Davies played sperm-game using his iPad for Ms Chen in workplace. The evidence will ultimately show that the Faculty of Engineering chose an improper approach to address the issue, i.e. constructive dismissal. The Faculty has the legal liability to what have happened. I request your honour at the close of the evidence to find the legal liability of the respondents in their conducts. The applicant, after all, asks only what she deserved: apologies, legal cost compensation, recovery of lost wages, and proper academic promotion.
The issues presented here involve all of us and the system of justice in this country, not merely the applicant, Ms Chen.
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