The Federal Court has ordered an accountant to pay $476,000 in damages for sexual harassment, rejecting his argument that the relevant laws didn't extend to him as a contractor and that corridors and areas near lifts should not be counted as part of a "workplace".
Justice Mordy Bromberg agreed with the accountant that he and the woman he was found to have harassed - also an accountant - were not "fellow employees" because he had been placed with Living and Leisure Australia Ltd (LLA) by his own employer, recruitment and labour hire company Robert Walters Pty Ltd. But Justice Bromberg said that only protected him from part of the Sex Discrimination Act 1984.
Justice Bromberg said that while an action against the male accountant based on a contravention of s28B(2) would not succeed as it refered to unlawful action by one "fellow employee" against another, he was still capable of being found to have contravened s28B(6), which prohibited a "workplace participant" sexually harassing another "workplace participant at a place that is a workplace of either or both of those persons".
Justice Bromberg said that this provision used a "commonality of workplace as the nexus in relation to harassment which takes place at that workplace" and was designed to address sexual harassment between members of the same workforce "rather than harassment which merely occurs at a workplace and which may, for example, have been engaged in by a visitor or other interloper".
Justice Bromberg rejected the self-represented accountant's attempts to argue that a corridor between the front door of the LLA office and nearby lifts was not a "workplace", saying that the "objective of eliminating sexual harassment in the workplace would be significantly undermined if, associated common areas such as entrances, lifts, corridors, kitchens and toilets were construed as falling beyond the geographical scope" intended by legislation.
Acknowledging the difficulties of determining sexual harassment cases on the basis of evidence likely to include "competing and conflicting versions of the same event" and potentially inaccurately recounted evidence if time has lapsed, Justice Bromberg said "a large body of prior statement" made by both parties had "provided a useful point of comparison with evidence given by those witnesses in the witness box".
Justice Bromberg said he believed that the female accountant at the time of the alleged verbal and physical sexual harassment in May 2009 was a "hardworking individual who liked to project herself as capable and able to cope with any eventuality", with no subsequent reason for him to believe that she was "other than an honest person respectful of the truth".
By contrast, he said, the contractor accountant appeared to be an "arrogant individual with little or no regard for the truth".
Justice Bromberg said he was satisfied that the female accountant – who resigned in late September 2009 because of the impact of the sexual harassment – had been both verbally and physically sexually harassed in May 2009.
He said the alleged physical harassment had led to the female accountant reporting to police that she had been raped by the contractor in the evening after a work function. He has since been interviewed by police.
Justice Bromberg said he accepted that the female accountant suffered from post-traumatic stress disorder and other psychiatric illness as a result of the May events and that this had, and would have, an impact on her being able to work.
While she must now supply the court with details of confidential settlements of claims against Living and Leisure Australia Ltd and Robert Walters Pty Ltd to ensure that she is not double compensated for the same events, Justice Bromberg has proposed that the contractor pay her $476,163 with interest, made up of $293,000 for loss of past earning capacity, $63,000 for loss of future earning capacity, $110,000 in general damages and $10,000 for past and future medical expenses.
He said he would not rule on an application for exemplary damages prior to knowing whether he was required by the other settlements to discount the general damages ordered.
In the interim, however, he said he believed that the proposed compensatory damages were not "inadequate to punish [the contractor] for the entirety of his unlawful conduct and to deter him and others from engaging in similar conduct".