A Federal Court Judgment handed down on Tuesday comes as a warning for businesses that have not taken sufficient measures to reduce the risks of workers being sexually harassed at work.
In December 2013, the Federal Court found that Claudio Vergara had sexually harassed Jemma Ewin while the two had been working together. Ms Ewin was employed as chartered accountant and Mr Vergara, also an accountant, was contracted to work at the same firm. The Court found that Mr Vergara had sexually harassed Ms Ewin four times in May 2009. It awarded damages of almost $500,000.
What is “the workplace”?
What will come as a surprise for many is the definition of the workplace. The Judgment confirmed that ‘For a place at which sexual harassment occurs to satisfy the statutory definition of “workplace”, the function carried out at that place needed to be “in connection with” Mr Vergara and Ms Ewin being workplace participants. The phrase “in connection with”… is a phrase of wide import’.
One of the incidents of sexual harassment took place at the Waterside Hotel in Melbourne. On appeal, Mr Vergara argued that there was not a sufficient connection to the workplace for this to constitute sexual harassment. He said that he and Ms Ewin had left the office and gone there for a drink, and therefore the sexual harassment did not take place in the workplace or in connection with the workplace. Ms Ewin said that they had left the office and gone to the Waterside Hotel to discuss work, because she did not feel comfortable alone in the office with Mr Vergara. They did discuss work and their working relationship at the hotel.
Sexual harassment is unwelcome sexual behaviour, which could be expected to make a person feel offended, humiliated or intimidated. It can be physical, verbal or written. Sexual harassment in the workplace or in connection with the workplace is against the law. This decision emphasises the wide remit of the workplace. It is not confined to business hours or the office; it can take place at a social venue, via electronic communication or social media.
Sex Discrimination Commissioner, Elizabeth Broderick, speaking today to The Age, emphasised the wide remit of sexual harassment:
‘It’s a reminder that we need to take sexual harassment with the utmost seriousness … businesses need to train staff and make sure they understand that behaviour outside of the four walls of the organisation is also unlawful’.
The Federal Court’s decision in this case is also a reminder to employers that the laws on sexual harassment apply to their contractors as well as their employees. The fact that Mr Vergara was contracted through a labour-hire company had no impact on the finding of workplace sexual harassment.
The link to the Judgment can be found here: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2014/2014fcafc0100