In a sexual harassment case, it is important to understand who a ‘workplace participant’ is and what the term ‘workplace’ covers, writes TGB's Belal Moraby.
In a sexual harassment case, it is important to understand who a ‘workplace participant’ is and what the term ‘workplace’ covers, writes TGB’s Belal Moraby.
Sexual harassment is any unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated.
A person who sexually harasses someone else is primarily responsible for their behaviour. However, an employer must take all reasonable steps to minimise the risk of harassment occurring at the workplace. If an employer fails to take such steps it can be held vicariously liable.
The legislation which governs sexual harassment is the Sex Discrimination Act 1984 (“the Act”).
Section 28B(6) of the Act makes it unlawful for a ‘workplace participant’ to sexually harass another ‘workplace participant’ at a place that is a workplace for either or both people.
This poses two important questions – who is a ‘workplace participant’ and what does the term ‘workplace’ cover?
The case of Ewin v Vergara  FCA 1311 deals with these two important issues.
In that case Ms Ewin and Mr Vergara were accountants working in the same office in Melbourne. However, Mr Vergara (a contract worker) was contracted to Ms Ewin’s firm to carry out an audit. Ms Ewin alleged that in May 2009 she was subjected to sexually suggestive comments, inappropriate touching, sexually propositioned, and most seriously, physical sexual assault following a work function. As a result of the alleged behavior Ms Ewin suffered significant psychological injury.
Despite the fact that Ms Ewin and Mr Vergara were not employees of the same company Ms Ewin relied upon Section 28B(6) of the Act (see above). Mr Vergara contended that he did not fall under the coverage of the Act. Although he did not challenge the fact that he was a ‘workplace participant’ for the purposes of the Act, he did challenge whether the alleged harassment occurred at a place that is a workplace of both participants. This went to the question of whether a workplace is confined to premises exclusively occupied by workplace participants and not to common areas shared with others and whether the usual workplace of participants is only a workplace during work time.
Justice Bromberg of the Federal Court of Australia found that Mr Vergara engaged in unwelcome physical conduct of a sexual nature which amounted to sexual harassment. It was held that Mr Vergara, despite being a contract worker, was a ’workplace participant’ and he was capable of contravening the Act. Further, it was held that the meaning of workplace is not confined to premises exclusively utilised by the workforce of which the workplace participants are members and therefore could include such places as entrances, lifts, corridors, toilets etc. Damages of $476,163 were awarded which included $110,000 for general damages, $293,000 for past loss of earning capacity and $63,000 for loss of future earning capacity. Although the employer was not subject to the proceedings there was an out-of-Court settlement in which the employer may have contributed to a significant degree.
It stands that the essential requirement in cases involving sexual harassment in a work setting is a common workplace between both participants. Further, employers have a significant responsibility to ensure that allegations of sexual harassment are properly investigated and reasonable steps are taken to minimise the risk.
TGB is South Australia’s largest plaintiff law firm. For advice about an employment legal issue, contact your nearest TGB location.