Sexual harassment – what is the “workplace”?

sexual harassment 

In a landmark court case, a Melbourne woman who was sexually harassed at a pub by a colleague has received a $500,000 payout. Significantly, the Federal Court found that the workplace “may be a fixed or moving location”.

The facts:

Chartered accountant Jemma Ewin, 36 was sexually harassed four times in May 2009 by contractor Claudio Vergara, 40. Each incident occurred in a different location: an office in the CBD, the Waterside Hotel, the Southern Cross train station and at Melbourne Aquarium during a work function.

  • Incident 1: while in the office, Mr Vergara turned the lights off one evening, walked behind her in the dark and tried to touch her hand. He told Ms Ewin that he would turn the light back on only if she agreed to talk with him, and they went to the Waterside Hotel.
  • Incident 2: at the Waterside Hotel, Mr Vergara proposed that they have an affair. Ms Ewin refused the offer.
  • Incident 3: outside Southern Cross train station, Mr Vergara tried to kiss Ms Ewin.
  • Incident 4: at Melbourne Aquarium, Ms Ewin accused Mr Vergara of rape. He was not charged by police.

The result:

The Federal Court found the Waterside Hotel’s pub met the statutory definition of “workplace” because the two parties met there to discuss incidents that occurred in the office. The fact that Mr Vergara was contracted through a labour-hire company was significant in determining that the hotel was in fact a workplace.

The Australian Sex Discrimination Commissioner Elizabeth Broderick says this ruling has ramifications for other sexual harassment complaints. Employers should note that the definition of “workplace” extends outside the physical workplace; for instance, it could include anywhere you take your laptop, in an office building’s common areas, the café downstairs, on public transport, a taxi or a hotel. If there is a work connection, it counts.

Employers should be conscious that the laws relating to sexual harassment extend to their contractors, not just employees, and can cover situations that occur outside of the conventional workplace. Employers must ensure their staff are trained on the laws, their responsibilities and most importantly, know their rights. As the Commissioner notes, businesses need to stamp out sexual harassment from their workplace culture.

Sexual harassment laws in Australia
Sexual harassment laws have been laid down for over 25 years now. However, the problems and complaints continue. One in five complaints received by the Australian Human Rights Commission under the Sex Discrimination Act relate to sexual harassment.

Sexual harassment is defined by law as:

any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature in relation to the person harassed in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Sexual harassment comes at a high cost, both to individuals and organisations housing sexual harassment victims.

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Source: Sydney Morning Herald