In a decision further shining the spotlight on sexual harassment in the workplace, the Federal Circuit Court has awarded an employee $170,000 after being subjected to months of unwanted advances from her employer.

Federal Circuit Court Judge Salvatore Vasta described the employer’s behaviour to be the “very conduct that the law of sexual harassment seeks to eliminate”, and had put the employee through a “nightmare” causing her to suffer a psychiatric injury.

The facts

The paralegal began working at the law firm in northern NSW in June 2015. She had recently separated from her husband and needed to find employment in the area so her children could maintain a relationship with their father who lived nearby. Shortly after commencing at the law firm, the firm’s principal offered to represent her in mediation with her ex-husband and on the eve of the mediation confessed to the paralegal that he had feelings for her.

The paralegal attended a work trip with the solicitor where she found him in her room on two occasions in his underwear and refused to leave the room until she gave him a hug. Upon returning from the work trip, the solicitor persisted with the behaviour, bombarding the paralegal with inappropriate emails, coerced hugs and veiled threats that her employment depended on the two entering into a romantic relationship.

Despite the paralegal’s repeated requests for the solicitor to stop, the solicitor continued to send emails declaring his feelings and desire to start a romantic relationship with her. The worker told the principal she was not interested in a relationship with him and asked him to stop sending emails. The paralegal said she had lied about having partner who lived overseas in an effort to discourage the solicitor’s behaviour.

The employer sent the paralegal seven emails in one day stating he wanted more than a working relationship. In one email the solicitor said he was very careful not to harass the paralegal and would defend any complaint made against him. However in another email he criticised the paralegal’s work ethic but said he could “live with it” if they “were lovers”.

He stated “I have tried my best with training and will continue to do so as long as you assure me you will not make a complaint or sue me.” The solicitor also used personal information he had gained as her legal representative to criticise her work and professionalism. The solicitor reduced the paralegal’s working days claiming his assessment of her ability had been clouded.

The paralegal resigned in June 2016 and sued the solicitor for sexual harassment.

Persistent behaviour constitutes unwelcome sexual advances

The solicitor submitted that he had not made sexual advances towards the paralegal but rather sought to have a romantic relationship with her. Judge Vasta stated that the solicitor “is attempting to differentiate an advance that is nothing more than sexual in nature against his proposal of a deeper, loving relationship.”

The Judge described this distinction as “reflecting a social myopia that, thankfully, is not reflected in the Act”.

“The fact the solicitor might view his actions as merely “romantic” does not detract from the fact that his actions were a daily nightmare for the paralegal,” he said.

Judge Vasta also said so “long as there is any sexual aspect to the solicitor’s advance, he has made a “sexual advance” as that term is understood under the Sex Discrimination Act 1984 (Cth).” He found that the solicitor had made numerous sexual advances towards the paralegal.

The solicitor also claimed that the paralegal encouraged his behaviour by flirting with him, wearing alluring dresses and flicking her hair in a sensual manner.

In determining whether the sexual advances were unwelcome, Judge Vasta said it was apparent the solicitor knew his behaviour was unwelcome. The paralegal had been consistent that solicitor’s conduct was unwelcome and that she did not want a personal relationship with him. The judge said the solicitor had acknowledged in his emails to the paralegal that his conduct was unwelcome and inappropriate.

The judge then determined whether the solicitor’s behaviour had the effect of offending, humiliating or intimidating the paralegal. Judge Vasta had regard to a number of facts including the employment relationship, the position of power as a “legal representative”, the paralegal being anchored to the region and her mental health concerns.

Judge Vasta found that the power imbalance was evident and that “not even the most naïve of men in this position would not have anticipated that the paralegal would be offended, humiliated or intimidated by the solicitor’s conduct.”

Judge Vasta concluded that the solicitor’s behaviour, as a whole and in the context, satisfies the definition of sexual harassment under the Act.

Aggravated damages awarded for abuse of power

In determining damages, Judge Vasta heard evidence from medical experts regarding the paralegal’s psychiatric injury as a result of the solicitor’s conduct.

Judge Vasta acknowledged the principles in Richardson v Oracle Corporation Pty Ltd that: “the general standards prevailing in the community regarding the monetary value of the loss and damage of the kind that the paralegal sustained has changed over time and there is an acceptance and an understanding of the pernicious nature of sexual harassment.”

The judge found the solicitor took advantage of the paralegal’s vulnerability, announcing his feelings while acting as her legal representative, coercing physical contact with her which he knew would never be appropriate and the threat of her employment if she did not enter into a relationship with him.

Judge Vasta accepted “while there was nothing crude, vulgar or lascivious about the harassment, nevertheless it was obviously unwarranted, persistent and threatening”.  He awarded $120,000 in general damages.

The Judge looked at two aspects in considering whether to award aggravated damages: the first being the threats made to the paralegal to stop her from making a complaint, and the second the manner in which the solicitor conducted the proceedings.

With respect to the threats, Judge Vasta found the solicitor knew his behaviour was unwelcome and not acceptable when he acknowledge he would fight any complaint the paralegal made. Citing the emails, he found the solicitor’s numerous threats that he “would fight” any complaint was “akin to, but falls short of, perverting the course of justice”.

In regards to his conduct during the proceedings, Judge Vasta described one of the more despicable acts of the solicitor was using information that he gained while acting as her “legal representative” for the sole purpose of blackening her name in these proceedings. The judge went on to say the “sole purpose of including material from her family law matter was an attempt to silence or bully the paralegal by defaming her character”.

The solicitor also attempted to pass the blame onto the paralegal for his behaviour by describing her as “flirty” towards him and referring to her clothing and perfume as alluring. The paralegal’s counsel described this as “slut shaming” however Judge Vasta could only describe it as utterly outrageous.

“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 eliminate this kind of behaviour,” the Judge said.

He awarded a further $50,000 to the paralegal for aggravated damages.

The spotlight on workplace sexual harassment

Now more than ever there is a strong focus on workplace sexual harassment and how the existing framework operates to ensure Australian workplaces are safe and respectful for everyone.

There has been an appetite for change following social movements that have exposed the prevalence in sexual harassment in some industries. There is also a greater understanding of the harm workplace sexual harassment has on individuals, businesses and the broader community.

In June 2018, the Sex Discrimination Commissioner, Kate Jenkins announced a National Inquiry into Sexual Harassment in Australian Workplaces. The National Inquiry involved an in-depth examination of sexual harassment in the workplace and the current Australian legal framework on sexual harassment. Commissioner Jenkins said there is a growing realisation that sexual harassment is not inevitable. It is unacceptable and it is preventable. The report is expected to be released in the second half of 2019.

A copy of AMMA’s submission to the Inquiry can be found here.

AMMA strongly encourages its members to ensure they have effective sexual harassment policies and procedures in their workplaces.

AMMA’s expert consulting team can assist in implementing new sexual harassment policies and procedures and/or reviewing existing policies and procedures to ensure they are best practice and support a safe and healthy work environment aligned with community expectations.

In addition, AMMA offers training on appropriate workplace behaviours, including sexual harassment and discrimination, and investigations practices for all types of workplace complaints.

For more information on how we can assist, contact your local AMMA office.