A recent Federal Court of Australia decision provides useful guidance on the application of the Sex Discrimination Act 1984 (Cth) (SD Act) to out-of-hours conduct between ‘workplace participants’ (i.e. persons who share a common ‘workplace’) and the scope of the ‘workplace’ (see Ewin v Vergara (No. 3) [2013] FCA 1311).

The Applicant alleged that the Respondent (a contractor engaged by the Applicant’s employer) had propositioned her using sexually explicit language and that, following a work function and separate drinks at a nearby bar, the Respondent subjected the Applicant to unwelcome sexual intercourse and assault at the corridor at the entrance to the office in which they worked.

The Court confirmed that common areas (such as the corridor, lifts, kitchens and toilets) fell within the scope of the ‘workplace’ and that the fact that the conduct occurred outside work hours when attendance at the workplace was not for a work-related purpose, does not affect the characterisation of the corridor as the ‘workplace’.

After finding the majority of allegations to be substantiated, the Court calculated damages in favour of the Applicant of $476,163 together with interest. This amount comprised $110,000 for general damages, making it one of the most substantial calculations of general damages under the SD Act. This amount also included $293,000 for loss of past earning capacity and $63,000 for loss of future earning capacity. The amount actually awarded against the Respondent was reduced to take into account any amounts previously received by the Applicant in relation to her claim.

Actions for employers

Employers should ensure that:

  • their systems support immediate reporting and thorough investigation of inappropriate workplace behaviour, and
  • investigations occur even where the complainant does not want action to be taken.

Further details can be found here.