The blurring of the boundary between work and personal time is occurring in all areas of life and the law. In this article, we look at this phenomenon through the lens of the Sex Discrimination Act 1984 (Cth) (SD Act).
In August this year, the Full Federal Court handed down its decision in Vergara v Ewin, which involved a sexual harassment claim made under the SD Act. The $476,163 award of damages to the applicant, Ms Ewin, is significant as it is one of the largest awards made for a sexual harassment claim.
This decision is a reminder to employers of the risk that a sexual harassment claim poses to their organisation. It also provides valuable insight into what will constitute a "workplace" for the purposes of the SD Act.
Ms Ewin and Mr Vergara (the Respondent) both worked at Living and Leisure Australia Pty Ltd (Living and Leisure), as the Group Financial Controller and as an accountant, respectively. Ms Ewin was employed by Living and Leisure. Mr Vergara was employed by Robert Walters Pty Ltd, and worked at Living and Leisure under a labour hire arrangement. They shared an office, with Ms Ewin acting as Mr Vergara's direct supervisor.
Ms Ewin alleged that Mr Vergara sexually harassed her over several days and at several locations, including in their shared office, in a hallway within the office building but outside their office, at a hotel near the office, on the street and at the office of a client. The sexual harassment consisted of comments of a sexual nature, touching and non-consensual sexual intercourse.
Meaning of "workplace" in the SD Act
The SD Act prohibits sexual harassment by, and of:
- employees and prospective employees
- commission agents and prospective commission agents
- contract workers and prospective contract workers
- partners in a partnership, and
- workplace participants.
The definition of "workplace participant" is flexible and captures a range of non-typical or developing workplace arrangements and structures, including interactions between a person on a labour-hire work placement and an employee (as was the workplace arrangement in this case).
Harassment by a workplace participant of another workplace participant is prohibited at a place that is a workplace of either or both workplace participants.
A "workplace" is defined in the SD Act as:
- a place in which a workplace participant works, or
- a place in which a workplace participant otherwise carries out functions in connection with being a workplace participant, which will be determined objectively.
In this case, the Full Federal Court considered the meaning of workplace under the second limb of the definition. It found that an informal meeting about workplace issues can constitute a "workplace function" and consequently, a social setting such as a hotel can be a workplace for the purposes of the SD Act.
In his decision, White J noted that the workplace can be a fixed
or moving location and the function carried out there can be
carried out at a place regularly, infrequently
or on a single occasion only.
The conduct of the workplace participants and their location at times other than when the sexual harassment occurs will also be relevant to determining whether sexual harassment occurs in the workplace. Conduct that comprises sexual harassment may be viewed as a "course" of conduct encompassing a number of locations. Consequently, where sexual harassment commences in the workplace and continues at another location that is not clearly a part of the workplace, it may be nevertheless captured by the SD Act.
What constitutes a workplace in the circumstances?
In this case, the hotel was found to be a workplace because Ms Vergara and Mr Ewin were at the hotel immediately following an incident of sexual harassment that occurred at the Living and Leisure office. The incident at the hotel was considered to be initiated as part of the sexual harassment at the office and therefore was part of that course of sexual harassment. The hotel was also a workplace for the purposes of the SD Act because, at the hotel, Ms Ewin attempted to deal with the incident of sexual harassment that had just occurred in the office.
Similarly, the street outside the hotel was found to be a workplace, because the sexual harassment that occurred at that location was part of the same course of conduct that began in the office and continued at the hotel.
However, these locations will not necessarily constitute a workplace in every situation. Whether a particular location is considered the workplace will depend on the reason that the workplace participants are at the place and the activities they are undertaking.
Implications for employers
Not every out-of-work function at a pub, restaurant or other location will constitute a workplace under the SD Act. However, employers need to be aware of the potentially broad definition. An interaction between workplace participants that begins at work could be sufficient to characterise these other locations as a workplace, even if there is no formal or official work-related reason for the workplace participants to be there.
Employers can minimise the risks associated with the broad definition of a workplace by implementing clear and detailed policies prohibiting sexual harassment in the workplace, as well as grievance resolution procedures and disciplinary procedures for responding to any complaints made. Although this won't necessarily prevent locations outside of the office being workplaces for the purpose of the SD Act, they may assist employers to limit the grounds for claims against them.
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.