An employee who was the victim of sexual harassment has been awarded almost half a million dollars in damages by the Federal Court in the case of Ewin v Vergara  FCA 1311.
The incidents occurred between 12 May 2009 and 15 May 2009. The employee alleged that she was sexually assaulted, verbally and physically, by a co-worker at the accounting firm they were both working at. The co-worker was a contractor employed by a recruitment firm to carry out duties with the accounting firm. The alleged conducted consisted of suggestive comments, inappropriate touching and attempts to kiss. It culminated on the 15 May 2009 following a work function. The employee became heavily intoxicated and was the victim of unwanted sexual intercourse from the co-worker. The unwanted sexual activity took place in the corridor outside the office.
The employer did not take the matter seriously when the employee reported the incident. It was suggested to her that she should speak to the co-worker herself. Consequently, the employee initiated legal proceedings against her employer and the agency that employed the co-worker. These proceedings were settled outside of court and a financial agreement was reached. However, as a result of the sexual harassment, the employee suffered post-traumatic stress disorder and other psychiatric illnesses making it impossible for her to continue with her employment. Subsequently, she initiated a second legal proceeding against the co-worker.
Section 28B(6) of the Sex Discrimination Act 1984 (Cth) provides that it is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons. The court had no trouble identifying the co-worker as a workplace participant for the purposes of the Act despite being a contractor. However, the primary question was whether the corridor outside the office could be considered a place that is a workplace of both persons.
Justice Bromberg of the Federal Court found that common areas such as ‘entrances, lifts, corridors, kitchens, and toilets’ were part of the workplace. He rejected any narrow interpretation of the section that would exclude such areas as the exclusion of such areas would significantly undermine the intention of the Act.
If anything, this case illustrates that despite settlement being reached with a complainant, there may still be legal proceedings pursued against other parties involved in the allegation.
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