Recently, the Federal Court upheld a finding that says a pub two work colleagues visited, directly across the road from their office, was actually a “workplace” under federal discrimination legislation.
Last December, Justice Mordy Bromberg found that a male accountant had verbally and physically harassed his female supervisor over three days in May 2009 under s28B(6) of the Sex Discrimination Act, including having sexual intercourse with her while she was intoxicated.
The supervisor was employed by Living and Leisure Australia Ltd (LLA) as its group financial controller, while the accountant worked for labour hire firm Robert Walters Pty Ltd (RWA). He worked with the supervisor under a contract between RWA and LLA.
The accountant initially harassed the supervisor one evening in the office. He then propositioned her in explicit and crude terms across the road in the pub of the Waterside Hotel in Melbourne’s CBD.
The next day he also propositioned her in the KPMG offices, and then again the next day in LLA’s office. That night after drinks in a bar, the accountant then had sexual intercourse with the supervisor in the corridor outside LLA’s office.
The Judge originally assessed the supervisor’s compensation at $476,163. However, after taking account of settlements obtained from other parties, he then ordered the accountant to pay her $210,563 inclusive of interest.
The accountant did appeal these findings, especially the one that noted the Waterside Hotel was actually a “workplace” under s28B(7). The court dismissed the accountant’s appeal and ordered him to pay the supervisor’s costs.
Section 28B(7), defines a “workplace” as “a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant”.
Justices Tony North and Tony Pagone said, in the majority ruling, that the supervisor had not accompanied the accountant to the Waterside Hotel in acceptance of his sexual advances. Instead, she sought “to deal with what she had repeatedly sought to discourage”. They ruled that she went with him in order to discuss this ongoing harassment.
The judges then noted that it was up to Judge Bromberg to determine the cause of the pub visit. Justice Bromberg must decide if it was the supervisor’s need to deal with the harassment from the accountant or something else. They noted that the “function” of both the accountant and the supervisor at the hotel pub “was to deal with what had commenced at the workplace”.
Key Takings
If it’s a work Xmas party, a work function, or a gathering of employees your behaviours could have consequeces.
