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.
Key takeaway
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
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