A majority of the Full Federal Court (FFC) has confirmed that, for the purposes of the prohibition on sexual harassment in a “workplace” contained in the Sexual Discrimination Act 1984 (Cth) (SD Act), a “workplace” may include a public space such as a hotel or street, provided there is sufficient connection with the usual “workplace”.

Implications for employers

This judgment makes it clear that sexually harassing conduct, which occurs outside what the parties may usually consider to constitute the “workplace” may breach the SD Act. Accordingly, it may increase the potential exposure of employers for the conduct of their employees or contractors outside the immediate “workplace” environment. Employers should ensure that workplace policies and training around acceptable workplace conduct address this issue.

Background: law

Under section 28B(6) of the SC Act, it is unlawful for a “workplace participant”, to sexually harass another workplace participant at a place that is a workplace of either or both of them.

Section 28B(7), the SD Act defines:

  • a “workplace” as “a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant”; and
  • a “workplace participant” as including an employee, employer, contract worker, commission agent or partner in a partnership.

Background: facts

Ms Ewin was a Chartered Accountant employed by Living and Leisure Australia Ltd (Employer). Mr Vergara was a contract worker, contracted by the Employer as an accountant, but employed by a labour hire company. Ms Ewin was Mr Vergara’s supervisor.

Mr Vergara engaged in unlawful sexual harassment of Ms Ewin on 13, 14 and 15 May 2009, including both verbal and physical harassment. One incident, on 15 May 2009, involved unwanted sexual intercourse.

The 13 May 2009 incident involved Mr Vergara approaching Ms Ewin in her office, turning the lights off and trying to touch her hand. He said he would only turn the lights back on if she agreed to talk with him, as he wished to tell her something. Ms Ewin, feeling uncomfortable and wishing to move to a venue where others would be present, agreed. They went to the Waterside Hotel, which was located across the road from the office. At the hotel, Mr Vergara propositioned Ms Ewin in crude terms and proposed that they have an affair. Ms Ewin refused. Mr Vergara then attempted to kiss Ms Ewin in King Street whilst they walked to the train station.

Ms Ewin brought a complaint of sexual harassment under the SD Act.

A key issue in the case was whether the 13 May 2009 conduct at the hotel and on the street was conduct that occurred at a “workplace” for the purposes of the SD Act.

Decision

Decision at first instance

At first instance, Justice Bromberg found that there had been breaches of section 28B(6) of the SD Act on 13, 14 and 15 May 2009. Among other things, Justice Bromberg found that:

  • the events which occurred on 13 May 2009 at the hotel were “part of the same course of sexual harassment which began in the office”;
  • the purpose of Ms Ewin’s attendance at the hotel and on the street on 13 May 2009 subsequently was to “deal with the sexual harassment which began at the workplace” . There was a sufficient “connection” between the events at those places and the workplace; and
  • he generally preferred Ms Ewin’s evidence, concluding that Mr Vergara was “an arrogant individual with little or no regard for the truth.”

Justice Bromberg awarded Ms Ewin compensation of $476,163.

Decision on appeal

The appeal was heard by Justices North, Pagone and White. A joint judgment was given by Justices North and Pagone, with Justice White in dissent on the questions of what constitutes a “workplace”.

Judgment of Justices North and Pagone

Justices North and Pagone concurred with Justice Bromberg’s finding of the breaches of the SD Act. In relation to the 13 May 2009 complaint and the question of whether the hotel and street were a “workplace”, they agreed that it was open to Justice Bromberg to find that:

going to the Waterside Hotel was triggered by a need to deal with resumption of Mr Vergara’s unwanted sexual advances…the function of both at that place was to deal with what had commenced at the workplace.

Their Honours said that Mr Vergara’s subjective intention to escalate his advances towards Ms Ewin were not a relevant consideration on the question of “workplace”, in circumstances where Ms Ewin was attempting to diminish the advances and deal with the working relationship between them.

Judgment of Justice White

Justice White agreed that the conduct on 14 and 15 May constituted a breach of the SD Act. However, in relation to the 13 May conduct, he disagreed with the finding that the hotel and street constituted a “workplace”, because:

  • Mr Vergara was there solely to importune Ms Ewin for sexual favours; and
  • neither Ms Ewin nor Mr Vergara were carrying out functions (a function being an act required, expected or authorised by the person’s employment, agency, contract or partnership) in connection with being a “workplace participant” at the hotel or in the street.

Despite Justice White’s dissent on the question of what is a “workplace”, given the seriousness of the harassment and its effect on Ms Ewin, all three judges unanimously upheld Justice Bromberg’s assessment of compensation.

Vergara v Ewin [2014] FCAFC 100