Perpetrators of Sexual Harassment Should Beware
A recent case shows the perils of sexually harassing another person. In the case of Ewin v Vergara (No. 3)  FCA 1311 Ms Ewin was an accountant employed by Living and Leisure Australia Limited (LLA) and Mr Vergara was recruited from a labour hire firm contracted to work at LLA. Ms Ewin claimed that Mr Vergara contravened the Sex Discrimination Act 1984 (Cth) which in s.28B(6) states that it is unlawful for a contract worker to sexually harass an employee at their workplace.
Under the Act sexual harassment is defined as conduct that is a sexual advance, request for sexual favour or conduct of a sexual nature. Ms Ewin bears the onus of proof that the conduct was unwelcome and made in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. Importantly the person who perpetrated the conduct, anticipated or otherwise perceived would be the reaction of the person harassed is not relevant.
Under the Act workplace means a place with a workplace participant works or otherwise carried out functions in connection with being a workplace participant.
Ms Ewin claimed that Mr Vergara verbally harassed and physically harassed her triggering post-traumatic stress disorder. In addition to the case there was a police investigation into the harassment which was also tendered in court.
The case was long and difficult which was compacted by Mr Vergara representing himself and ultimately Justice Bromberd was satisfied that Ms Ewin had been both verbally and physically harassed and awarded Ms Ewin damages for the amount of $476,163 with interest.
This decision highlights the possible ramifications that companies face from a serious sexual harassment complaint, particularly the significant financial penalties that may be awarded against a perpetrator. It is important to remember that Mr Vergara was a contractor not an employee, a workplace extends to a place at which the participants work or otherwise carry out functions in connection with being a workplace participant.
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