By Mike Toten Freelance Writer

In the first major decision that considered the meaning of “harassment based on s*x and s*xual conduct “in relation to an employee”, a fast food restaurant employee has been awarded damages and compensation of $305,000 for s*xual harassment.  

 

Facts of case 

The Federal Court found that she had been subjected to the following conduct by the store owner: 

Questioned about her s*x life and m**turbation habits. 

Forced to look at p**nographic videos and s*x toys. 

Asked if she had had s*x with a woman or watched l*sbian p**nography, and told to “loosen” up when she said no. 

The owner told her about having s*x with his ex-wife. 

He had led discussions inside the store about female customers and ex-employees with comments about their appearance and s*xuality.  

Some of the above conduct had occurred when the two of them were together outside the store, on some occasions when the owner asked the employee to accompany him to his car. 

The workplace was male-dominated and male employees were encouraged to take part in the discussions. S*xist and boorish behaviour was openly encouraged and allowed to escalate. The business owner had no interest in preventing harassment at work, in fact the reverse. 

When the employee complained about victimisation, the owner threatened her with defamation proceedings. 

This decision also addressed the issue of s*x-based harassment, as distinct from s*xual harassment, and whether harassment had occurred “in relation to” the employee. The Court found that harassment at work can be directed at an employee who complains and done in his/her presence, but must still be done in relation to the employee. In this case, s*xual harassment of the employee by the store owner definitely occurred, but the Court said it did not also meet the test of being “in relation to” the employee. The behaviour of the co-workers had not been directed at her. 

The employee was 22 years old and of Nepalese ethnicity, with no other family in Australia. The Court said she was a “vulnerable” employee. It added that similar conduct would probably have been harassment on the ground of s*x if the demeaning comments and attempted humour about se*ual activity by the male co-workers had been proven to be about, or otherwise directed at the employee, inevitably because she was female and therefore on the ground of her s*x, given the nature and content of the comments. 

The Court said that it was obvious that any reasonable person would be intimidated and threatened by the above conduct, and this employee’s vulnerability further increased that likelihood. 

When the employee complained to the employer’s HR Department, the store owner’s legal representatives twice threatened to sue her for defamation if she did not withdraw the complaints. The Court said that this amounted to victimisation. 

The employee eventually stopped working at the store. She also presented evidence that the conduct had adverse psychological effects on her, including post-traumatic stress and depression. 

 

Decision 

The Court has yet to issue final orders regarding contraventions, but intends to award total compensation of $305,000, comprising: 

  • $160,000 in general damages for s*xual harassment 
  • $10,000 general damages for victimisation 
  • $5,000 in aggravated damages because of "highly offensive" arguments the owner's representatives presented during proceedings 
  • $130,000 for past and future economic loss 

 

What this means for employers 

This is the first major case that considered sec 28AA of the Commonwealth Sex Discrimination Act 1984, which covers conduct based on the ground of s*x, as distinct from conduct towards an employee that is s*xual in nature. The Court found that the offensive conduct did not occur “in relation to” the employee, but that the store owner did s*xually harass her (unwelcome conduct of a demeaning nature).  

Frequent s*xual  comments made about others in a workplace, eg customers, but not directed at a particular employee, can still amount to s*x-based harassment of that employee, although in this case it did not pass the test of being made “in relation to” that employee.  

Instead of taking steps to prevent harassment occurring, the owner of this business led and encouraged it.