11 June 2019

A recent decision by the Federal Circuit Court of Australia to award near-record damages of $170,000 to a woman who was sexually harassed by her boss, demonstrates that perpetrators of workplace sexual harassment not only risk criminal action but the imposition of heavy penalties.

Leading compensation lawyer Travis Schultz has warned that employers must ensure they have the correct policies and procedures in place to protect employees from harassment or face serious consequences.

“This is one of the largest compensation payouts for conduct of this type in Australia and shows that the law is taking this matter very seriously,” the principal of Travis Schultz Law said.

“The decision underscores the need to ensure that policies are in place to prevent sexual harassment in the workplace and, perhaps more importantly, to also ensure that the culture of the organisation does not condone conduct which might fall foul of the Sex Discrimination Act.

“In Queensland, the Anti-Discrimination Act has made sexual harassment an offence for many years. However, the issue of sexual harassment has risen to prominence in recent years due to the growing #MeToo movement, which was triggered by allegations against high profile Hollywood types and other celebrities.”

In the recent decision, the applicant, Ms Hill, began working with the respondent Mr Hughes in a small regional law firm in NSW. Shortly after her employment, Mr Hughes reportedly made advances, at times hugging her and pestering her with expressions of intimate feelings.

Because Ms Hill had been unemployed for a lengthy period of time prior to starting work for the law firm, she was concerned that she had very few employment options within the region where she lived. These conditions meant she was initially reluctant to say anything that might put her employment at risk.

Eventually, Mr Hughes sent emails in which he warned her of certain consequences if she made a complaint about his conduct.

At the trial, Mr Hughes tried to argue that there was a distinction that should be drawn between his romantic intentions, in which he had suggested a deeper loving relationship, with harassment of a sexual nature.

The judge however found that the Sex Discrimination Act 1984 makes no such distinction.

Judge Vasta found that: “At its core, sexual harassment is a social practice of enforced inequality that demeans individuals on the basis of sex”.

The judge advised that sexual harassment law seeks to address those workplace power imbalances that result from fear, silencing and the harms that flow from sexual hierarchy.

Judge Vasta awarded compensatory damages of $120,000, plus a further $50,000 in aggravated damages due to the employer’s conduct in trying to stop Ms Hill from making a complaint.

The employer reportedly did his position no favours by describing her behaviour as flirty and coquettish and that she wore “alluring dresses” to the office.

Judge Vasta said: “it is the mark of a bygone era where women, by their mere presence, were responsible for the reprehensible behaviour of men … the Sex Discrimination Act was enacted to help eliminate this sort of thinking.”

“For employees, this decision should give a greater sense of confidence that discrimination laws will be taken seriously in Australia,” Mr Schultz said.

“If an employee has been exposed to this type of conduct, and the issue cannot be resolved by conciliation, a complaint to the Australian Human Rights Commission is available as an avenue for redress.”