A recent finding by the Federal Court emphasises the need to keep up-to-date with sexual harassment law.

Defining the ‘workplace’

A ruling on an appeal has effectively expanded the definition of workplace.

Jemma Ewin was an employee of Living and Leisure Australia Limited (LLA). Claudio Vergara was employed by a labour hire firm to perform work for LLA. Ewin brought an action against Vergara, claiming he had sexually harassed her on a number of occasions, including incidents in a hotel and on the street.

The court found that sexual harassment had been demonstrated and all the incidents had occurred within the ‘workplace’. Ewin was awarded $476,163 plus interest ($110,000 for general damages and the rest for loss of past and future earning capacity, and past and future expenses).

Vergara appealed on grounds including that the hotel or the street should not have been regarded as a ‘workplace’ for the purposes of the Sexual Discrimination Act.

The majority of the Full Court found that the judge had been correct in finding that the visit to the hotel “was to deal with what had commenced at the workplace”. What had occurred on the street and in the hotel was the continuation of Ewin’s attempt to deal with the sexual harassment, which had occurred at the office, by moving to a safer place where Vergara’s actions could be viewed by others.

This decision delivers some lessons

• Employers can be vicariously liable for the actions of a person who is neither an employee, nor an agent of the employer. For example, under both state and federal legislation, an ‘employee’ includes independent contractors engaged under a contract for services.
• The increased scope of locations that can be ‘workplaces’ is alarming. On the reasoning in Vergara v Ewin, it’s likely that each employee’s home will also be a relevant workplace. For example, if a pattern of sexual harassment, which began at work, is continued in the privacy of each individual’s home at night via Facebook.

Furthermore, unresolved questions will trouble some employers. For example, where do these cases leave employers who, on the one hand, risk being found to have unfairly dismissed an employee on the grounds of sexual harassment that is said to have an insufficient connection to the workplace? On the other hand, employers can be liable for acts committed in hotels, or even in private homes, which are held to be “workplaces”. How can employers demonstrate taking all reasonable precautions against actions committed at such locations? Is this a case of employers being damned if they do, damned if they don’t?

In any case, it is now more important than ever for employers to ensure policies are universally applied, with appropriate training recorded for all workplace participants. This should be high on every employer’s agenda.