Key Points: This case demonstrates the importance of taking complaints
of harassment seriously and appropriately investigating and
handling such complaints.
In Poniatowska v Hickinbotham  FCA 680 the Federal Court
ordered that $466,000 be paid by an employer to a former employee
in damages for unlawful discrimination.
Ms Poniatowska was employed as a building consultant by
Employment Services Australia (ESA) to sell house and land packages
on behalf of Hickinbotham Homes Pty Ltd. Ms Poniatowska made a
range of complaints alleging that she had been subjected to sexual
harassment in the workplace. She was then issued a number of formal
warning notices and ultimately terminated for "unsatisfactory
The sexual harassment alleged by Ms Poniatowska was comprised of
a number of incidents, including that:
the Chairman of Hickinbotham Group had told her that she had
"two good assets" while staring at her breasts;
she had received a number of inappropriate emails from a
co-worker - Mr Flynn - suggesting that they embark upon a sexual
when Ms Poniatowska reported this to her team leader Ms
Sharrad, Ms Sharrad had remarked "what do you expect with a
face like yours?";
Ms Poniatowska was rostered to work with another employee -Mr
Lotito -that she specifically asked not to work with and Mr Lotito
subsequently sent her a pornographic MMS message and numerous
telephone invitations for sex;
Ms Sharrad had requested that Ms Poniatowska enter into a
sexual relationship to advance a deal being conducted by
Hickinbotham Group; and
that the Managing Director had kissed her on the mouth at a
Justice Mansfield of the Federal Court found that the majority
of incidents alleged by Ms Poniatowska had taken place. Although he
did not uphold the allegations in relation to harassment by the
Chairman or Managing Director and did not accept that Ms Sharrad
had requested that Ms Poniatowska enter into a sexual relationship
to advance a deal being conducted by Hickinbotham Group, he found
that Mr Flynn and Mr Lotito had harassed Ms Poniatowska in the
manner alleged and that the company had not adequately responded to
The Court also held that the termination of Ms Poniatowska was
in fact related to the incidents described above, rather than the
quality of her performance.
Importantly, Justice Mansfield drew attention to the absence of
appropriate workplace policies for dealing with the harassment and
noted that Ms Poniatowska was not treated like a victim but was
instead penalised. She was treated less favourably than a man would
have been treated in the same circumstances and then dismissed.
Justice Mansfield held that this constituted unlawful
Justice Mansfield awarded Ms Poniatowska a total of $466,000 to
compensate for the unlawful discrimination. This amount factored in
pain and suffering;
lost earning capacity (both past and in the future);
medical expenses (relating to the severe depression and anxiety
that Ms Poniatowska had developed as a result of the
Justice Mansfield also gave ESA leave to apply for some of the
costs to be paid by the various employees involved in the unlawful
Solicitors for ESA have confirmed that ESA intends to appeal the
This case demonstrates the importance of taking complaints of
harassment seriously and appropriately investigating and handling
such complaints. Employers need to have policies in place which
specify appropriate workplace conduct and must discipline employees
that engage in any inappropriate conduct. The case also illuminates
the need for staff in leadership positions to be adequately trained
to manage these situations. Justice Mansfield was particularly
critical of the manner in which Ms Sharrad responded to Ms
Poniatowska when she reported various instances of sexual
Further, employers must be careful if they intend to terminate
for poor performance an employee who has made complaints of this
nature. Any termination must be genuinely related to performance
concerns. It is not enough to simply send the employee official
warning letters. There must be clear reasons to substantiate that
termination, otherwise the termination may be viewed as another
form of discrimination against the victim of alleged
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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