|December 20, 2013|
Previously published on December 2013
The Federal Court has granted a female employee $476,000 in damages, after finding she was sexually harassed by an "arrogant" contractor. The contractor (who was engaged as a contract accountant) had been pursuing the female employee in an aggressive and persistent manner, despite her repeated rejections. The actual incident leading to the claim took place after a work party, where it was alleged that the contractor sexually assaulted the victim in a corridor. The female employee later reported the incident to the police and resigned from employment.
The self-represented accountant claimed that as a contractor (as opposed to a fellow employee of the victim), he was not liable for breaches brought under the Sex Discrimination Act 1984 (Cth). The contractor also argued that the sexual harassment application was beyond the scope of the legislation as the alleged incident took place in the common corridor outside the office, and outside normal working hours. The Court rejected the defense, noting that the essential requirement to be satisfied in sexual harassment cases is a common workplace between the victim and the person committing the assault.
In assessing damages, the judge took into account the female employee's post-traumatic stress disorder and other psychiatric illness that had resulted from the alleged sexual assault. Her resignation, and the impact of the incident on her ability to work, were further considerations. The judge ordered damages of $476,000, with the intent to punish the contractor and deter him and others from engaging in similar conduct in the future.
This is a timely reminder that the protections in the Sex Discrimination Act apply to all "workplace participants", which is a broader concept than employees, and includes contractors.
Further, this decision confirms that a "workplace" includes associated common areas, which is consistent with the broad scope of what a "workplace" may be, as any alternative interpretation would undermine the Act's objective.
Ewin v Vergara (No 3) (2013) FCA 1311