Under the Sex Discrimination Act, "a workplace" isn't limited to the employer's own premises, so employers should review their sexual harassment policies and training.
A decision to award $476,163 for sexual harassment – one of the largest on record – made headlines, but the Federal Court's potentially very broad view of the "workplace" in sexual harassment cases could also lead to greater scrutiny of employees' and contractors' offsite activities (Ewin v Vergara (No. 3)  FCA 1311).
Mr Vergara sexually harasses Ms Ewin
Jemma Ewin and Claudio Vergara were accountants at Living and Leisure Australia Limited (LLA). She was employed by LLA; he was employed by a labour hire firm to perform work for LLA.
Ms Ewin alleged that Mr Vergara had subjected her to sexual harassment in the form of sexually explicit comments and physical acts over the course of several days in May 2009. Of the four incidents Ms Ewin complained of, the Court held three were sexual harassment as they were:
- conduct of a sexual nature; and
- unwelcome; and
- in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
The Sex Discrimination Act prohibits sexual harassment by employees, partners and contractors. In the case of contractors, complainants must show sexual harassment occurred at a workplace, which is defined as "a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant".
The three incidents occurred in the office, but also in the common areas of the building in which LLA had its offices, a hotel and a taxi. Were these "the workplace"?
Perhaps surprisingly, there was no case law which considered the specific meaning of "a workplace" under the Sex Discrimination Act.
It's sexual harassment, but is it in "the workplace"?
The Act defines "workplace" as a "place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant."
Mr Vergara said that this covered only the area exclusively occupied by LLA as its office and not to any common areas on the floor of the office building on which the office was located.
Justice Bromberg disagreed:
"What makes a workplace animate are the people who work in it and the relations between them... "workplace" is not confined to the place of work of the participants but extends to a place at which the participants work or otherwise carry out functions in connection with being a workplace participant. [emphasis in the original]"
That meant the Court had to examine not just the interactions between Ms Ewin and Mr Vergara, but where they happened and why they were there.
Is a taxi a passenger's "workplace"?
Ms Ewin and Mr Vergara went to KPMG's offices to discuss a matter that they were working on. In the course of the taxi ride, and while sitting in a meeting room at KPMG's offices, Mr Vergara made inappropriate comments which were found to constitute sexual harassment. These were held to have occurred in "a workplace" because they visited KPMG to perform their work responsibilities.
A hotel and a street part of the workplace
Ms Ewin and Mr Vergara were the only people in the office working late. Vergara said he was going to the bathroom. Ewin was sitting at her computer and suddenly found herself in darkness – the lights had been turned off. She then felt Vergara put his hand on her hand.
Ms Ewin told Mr Vergara to turn the lights on. Mr Vergara said that he would, but only if Ms Ewin agreed to speak to him about something. Ms Ewin suggested that they both go to a nearby hotel to talk because this was a public place and she felt she would be safer with other people around.
At the hotel, Mr Vergara said a number of things which were found to constitute sexual harassment. She rebuffed him, and he then left. She then left, but as she was walking back to the office Mr Vergara suddenly grabbed her from behind and attempted to kiss her. Ms Ewin pushed him away.
Justice Bromberg found that this entire course of events, from Mr Vergara's turning off the lights, to his grabbing of Ms Ewin on the street, was sexual harassment and had occurred in a workplace. This was because it was Mr Vergara's initial conduct at the office of turning off the lights and touching Ms Ewin led to their presence at those public places.
The common areas of the building
LLA organised a drinks function off-site at the Melbourne Aquarium. After the function ended, some of them went on to a bar.
At the aquarium and at the bar, Ms Ewin had some alcoholic drinks. At the bar, she started to feel nauseous and went to the bathroom. She claimed that after she came out of the bathroom, Mr Vergara forced his face onto hers. She was able to extract herself from Vergara but then blacked out and had no memory of the rest of the night. She woke up the next morning with indications she'd had sexual intercourse.
Mr Vergara said that at her urging they had returned to the office and engaged in consensual sexual intercourse in the corridor outside the front door of the LLA office.
Justice Bromberg rejected the assertion that this was consensual. Given Ms Ewin's continued rebuffs of Mr Vergara's sexual advances and her intoxication, she either maintained her antipathy, or could not form a view about whether sex with him was agreeable or desirable. Either way, he said, "the conduct is to be regarded as unwelcome sexual conduct". It had happened in the "workplace", as that term covers common areas, such as entrances, lifts, corridors and kitchens, in an office building which is shared by the relevant employer in common with other employees.
What employers should do now
If Justice Bromberg's reasoning is followed, it seems that any place or vehicle which is attended for the purposes of performing one's work responsibilities and duties would amount to a workplace, including common areas in an office building such as lifts, toilets and corridors.
Public places where no actual work or activities relating to work are performed could also constitute a workplace. Deciding whether a particular location amounts to a workplace will require careful analysis of the chain of events leading to the employee or contractor being there.
This might come as a surprise not just to employers, but also their employees, contractors or agents. The first and most important step for employers or head contractors to take therefore is to ensure their training and policies explain that employees', contractors' and agents' responsibility to avoid sexual harassment doesn't disappear simply because they are outside the office.
The second important step is to ensure you respond properly to allegations of sexual harassment. If you approve or acquiesce to the conduct, you could be vicariously liable.
Thanks to Sadaat Cheema for his help in writing this article.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.