The Federal Court recently ordered a contractor accountant to
pay $476,000 in damages for sexual harassment. The contractor was
employed by Robert Walters Pty Ltd and placed at Living &
Leisure Australia Ltd (LLA) to assist with accountancy duties.
Whilst at LLA it was alleged that the contractor engaged in
multiple instances of sexual harassment towards an employee of LLA,
including inappropriate gestures, language and physical contact. It
was also alleged that the contractor forced the LLA employee to
engage in sexual acts following an LLA work function.
The employee subsequently resigned from her position with LLA
and commenced proceedings against LLA, Robert Walters Pty Ltd and
the contractor. The proceedings against the contractor were brought
under the Sex Discrimination Act 1984 (SDA).
In defending the proceedings, the contractor argued that as a
contractor, he was not subject to the SDA and that the corridors
and areas adjacent to a place of work such as elevator spaces
(where some of the conduct occurred) do not constitute part of the
workplace. The court, however, disagreed and stated that the SDA
was designed to protect workplace participants regardless of their
employment type. The court also rejected the contractor's
argument that the conduct did not occur at a workplace, saying the
intent of the legislation would be undermined substantially if
associated common areas were construed as falling beyond the
intended geographical scope of the SDA.
Lessons for employers
Employers who engage contractors have a duty of care to ensure,
so far as is reasonably practical, that the contractor's
conduct does not adversely affect the safety of its employees (or
other workers). Employers must be aware that a 'workplace'
extends to areas associated with the workplace such as elevator
wells, corridors and entrances.
Conduct outside of working hours, for example during or after
work functions, can also expose an employer to liability for the
conduct of its contractors and employees.
Care should be taken by employers to develop preventative
measures such as creating, implementing and enforcing a sexual
harassment and bullying policy and a complaint handling system.
Contracted workers should also be included in this process.
Cooper Grace Ward Lawyers can assist your business develop and
implement strategies to aid in the prevention or reduction of risks
associated with these issues and all other employment matters.
Winner – EOWA Employer of Choice for Women Citation 2009,
2010, 2011 and 2012
Winner – ALB Gold Employer of Choice 2011 and 2012
Finalist – ALB Australasian Law Awards 2008, 2010, 2011 and
2012 (Best Brisbane Firm)
Winner – BRW Client Choice Awards 2009 and 2010 - Best
Australian Law Firm (revenue less than $50m)
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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