Australia: Unrequited office romance – when does it become sexual harassment?

Last Updated: 12 July 2019
Article by Clayton Payne

In the modern age when people spend more and more time at work, mutual attraction between workers can often lead to romance.

But what happens when the attraction towards one party is unrequited? Can the behaviour of one party lead to a claim of sexual harassment?

These matters were explored recently by the Federal Circuit Court of Australia in the matter of Hill.

The Facts

The worker was engaged by the employer, an individual trading as a law firm.

The evidence before the court (in the hearing of the claim eventually brought by the worker) showed that the employer wanted to be in a relationship with the worker. The issue became whether the employer's conduct amounted to sexual harassment.

The worker was employed as a legal practitioner and as a lawyer with the employer.

Early on in the employment, the employer offered to act for the worker in relation to her personal family law matters, which she accepted. It was found that the employer offered his services so that he could learn more about the worker's personal life and be "closer" to her.

The employer asked the worker to accompany him on a work trip to Sydney, which it was found the employer used to see if he could use it to commence a sexual relationship with the worker. The worker made it clear to the employer at around this time that she did not want a personal relationship with the employer and regarded the trip to Sydney as entirely work related. During the trip however, a number of incidents occurred, including the employer entering the worker's bedroom in his underwear.

It was noted that over a period of time the employer bombarded the worker with emails, and while the worker asked the employer to stop, he did not. It was also noted that almost every email sent to the worker concluded with the word "love" or symbols of hugs and kisses.

Among the emails, it was also noted that veiled threats were made that the worker's employment depended upon her entering into a sexual or romantic relationship with the employer. One email noted the employer as saying:

"I know you might decide that we should just have a working relationship but I need someone ..... All cool if you want to just work for me about(sic) at the end of the day you have(sic) would have a Ukrainian woman working for me as well as you and you might be sorry you turned me down romantically".

His Honour Judge Vasta went on to find:

"It was obvious to (the employer) that these emails were harassing not just because they were not wanted, but also due to the sheer number and quick succession in which they arrived. Knowing that (the worker), financially and socially disempowered, might make a complaint (the employer) then threatened her that he would fight any such action".

The employer also raised the need towards the end of the employment relationship of reducing the worker's hours of work and, it was found, used the personal knowledge he had previously gained as her legal representative as an excuse to criticise her work and her standing as a professional. The worker ultimately resigned from her employment with the employer.

It was found that the employer's "sexual advances" were unwelcome, and would have been offending, humiliating and intimidating to the worker, and that the employer would have anticipated that possibility of this. As such it was found that the employer had sexually harassed the worker.

Noting also that it was found that the worker had suffered a psychiatric injury as a result of the employer's conduct, the worker was awarded $120,000 in general damages and a further $50,000 for aggravated damages.

Conclusion

Mutual attraction in the workplace is commonplace and can give rise to long term relationships. This is unsurprising given that often co-workers have common interests and experiences.

A worker asking a co-worker to go out on a date on a single occasion, which is rejected, is not likely to give rise to a claim of sexual harassment. That said, other single incidents (such as an obscene proposition or comment) could.

In Hill, the conduct, although by and large not overtly sexually explicit in nature, occurred in circumstances where it was found that the employer wished to enter into a sexual relationship with the worker. It was found that this behaviour still constituted "sexual advances" for the purposes of a claim.

In this case, the employer was found liable for the conduct in question. In other cases, the employer can be held vicariously liable for the action of its employees. For this reason in particular, and to assist in protecting them from claims, employers should have in place robust policies and training dealing with the avoidance of such adverse behaviour.

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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