We often focus on the headline discrimination cases such as
DJ'S and Ms Fraser-Kirk, but lower level cases are just as
instructive on practical aspects of avoiding discriminatory
In a recent Federal Magistrates Court case, Ms Noble sued her
manager, Mr Baldwin and her employer, RNP, for discrimination. She
alleged that Mr Baldwin looked at her breasts whenever he spoke to
her, regularly touched his genitalia in her presence, brushed
himself against her breasts and other women's breasts, engaged
in discussion of women's sexual desires and orientation, and
suggested he employed women based on the size of their breasts.
The allegations of physical contact and looking at Ms
Noble's breasts were borne out to a limited extent, and were
not cancelled out by the fact that Ms Noble had sent some unsavoury
emails herself and, after drinking at a work social function, had
behaved inappropriately with the MD. Her behaviour did not indicate
that it was such a "robust" work place that Mr Baldwin
could think, or in fact any reasonable person would've thought,
that his conduct was acceptable. A reasonable person in the
circumstances would have expected Ms Noble to be offended.
On the other hand, brushing past other women's breasts was
deemed not relevant as it was not sexual harassment of Ms Noble. Mr
Baldwin touching himself was also not specifically directed at Ms
Noble, and while potentially offensive, was not sexual harassment
of her. Similarly, comments about other women's breasts were
not sexual harassment of Ms Noble because there was insufficient
evidence that the remarks were unwelcome.
Importantly, the Magistrate said that the legislation is not
intended to make every remark of a mildly sexual character an
instance of sexual harassment. However the comments regarding
selecting employees based on breast size, clearly were demeaning
and unwelcome to Ms Noble, and amounted to discriminatory or
Ms Noble had originally complained about Mr Baldwin's
behaviour in 2005 and RNP had dealt with the complaint entirely
appropriately, in a timely fashion, thoroughly and acceptably to Ms
Noble. However, the Court felt that was not sufficient for the
company to claim that it had taken "all reasonable steps to
prevent" sexual harassment. RNP had not introduced relevant
policies or training until sometime later, and Mr Baldwin's
behaviour deteriorated again after a temporary improvement in 2005.
RNP was therefore found to be vicariously liable for Mr
The Court was also not satisfied that Ms Noble had suffered
substantial economic loss because of the discrimination and
harassment: she had chosen to resign and had other issues in her
life which had impeded her obtaining replacement employment. Since
much of the conduct of which Ms Noble complained was not infact
unlawful conduct, it was not possible for her to prove that her
medical and drinking conditions were caused by the discriminatory
conduct. As a result, Ms Noble was awarded $2,000 damages, and Mr
Baldwin and RNP had to pay half of Ms Noble's costs in the
What can be learned from this case?
This case took five hearing days, and would have required a lot
of preparation on both sides: the outcome could be seen as entirely
disproportionate to the costs incurred.
For Ms Noble, the half of her costs she had to pay herself was
probably more than the damages awarded - a rather pyrrhic victory.
From RNP and Mr Baldwin's point of view, they saw off a large
part of Ms Noble's complaint, but at very substantial cost
(their own legal costs and half of hers).
RNP would have been in a much better position to resist the
complaints if, after warning Mr Baldwin once, it had monitored his
behaviour so that either his unattractive behaviour was avoided, or
he moved on. RNP would also have been much better off if it had
more to say about introducing anti-discrimination policies and
Does your workplace have sufficient policies in place, or
conduct anti-discriminatory training?
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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