27/02/2014

The Federal Court has recently held that an employee’s ‘workplace’ includes, not just the employer’s office but public places, associated offices and even public transport like the Clapham Omnibus.

The case involved allegations of verbal and physical sexual harassment in the “workplace”.  The allegations were that a contractor to the employer harassed an employee over a 4 day period and, as a result of the harassment, the employee suffered post-traumatic stress disorder (PTSD) and other psychiatric illness.

The claim was successful and the employee was awarded total damages of $476,163 including damages for lost earnings, general damages and expenses.

There were a number of issues in the case but one considered by the Court was the definition of ‘workplace’ under the Sex Discrimination Act 1984 (Cth) (“the Act”), as some of the alleged conduct occurred in common areas within the employer’s building, a taxi, a bar and another company’s premises and at times outside of work hours.  The issue for the Court was whether the alleged conduct occurred in a “workplace”, for the purposes of the Act.

The two key provisions are sections 28A and 28B of the Act.

Section 28A of the Act states that a person sexually harasses another if they make unwelcome sexual advances or unwelcome conduct of a sexual nature in circumstances where a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.

Section 28B of the Act then includes that it is unlawful to sexually harass another workplace participant “at a place that is a workplace of both of those persons”.  ‘Workplace’ is defined as a place “at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant”.

In this case, the person the subject of the alleged harassment was an employee and the other person was a contractor engaged by a recruitment and labour hire firm.

Part of the defence to the claims was that the alleged conduct occurred outside of working hours and not in places exclusively occupied and utilised by the workplace participants of that workplace.

The Court looked at the definition of ‘workplace’ and held that it is cast in wide terms.  The Court stated:

“That wide approach recognises that work or work based functions are commonly undertaken in a wide range of places (including on various means of transport) beyond the principal or ordinary place or places of work of workplace participants from a common workforce.  Such places would commonly include the premises of clients, suppliers, associated businesses, conference halls and other venues where work functions are held and in transportation vehicles during work related travel.”

Further the Court held that the:

“objective of eliminating sexual harassment in the workplace would be significantly undermined if, associated common areas such as entrances, lifts, corridors, kitchens and toilets were [not covered by the Act].”

In this case, the alleged conduct at the office and other places was held to be captured by the Act as part of the ‘workplace’ and the claim was therefore successful.

What the court appears to be saying is that it doesn’t really matter what sort of place it is – any place where work functions are carried out, or other activities relating to work occur, is a ‘workplace’ for the purposes of the Act.

As the applicant had suffered PTSD and other psychiatric illness, the Court awarded amounts for lost past earnings ($293,000), lost future earnings ($63,000), general damages ($110,000) and expenses ($10,163).  The total damages awarded being $476,163.

This case serves as a message that employers should have policies in place to limit the occurrence of this type of conduct wherever it occurs in relation to the workplace and to counsel staff on appropriate workplace conduct as part of their broad duties.  The policy should then be followed and enforced by the employer as the consequences, as in this case, can be substantial.

In particular staff need to be encouraged to make a complaint to management immediately there is even the slightest hint of a problem.  Management can never know in advance that an employee is about to sexually harass a workmate, but if the complainant makes the complaint early management should act quickly to prevent further behaviour and try to limit potential claims.

If you have any questions in relation to this article, need advice on this issue or would like assistance in drafting your business’ sexual harassment policy please call us on (02) 8296 6222.