Workplace Harassment Laws have Wide Net

Ewin v Vergara (No 3) [2013] FCA 1311 (5 December 2013)

The laws about harassment in the workplace extend to common areas adjacent to specific workplaces and extend to persons who are not “fellow employees”. Finding this out the hard way cost an accountant $467,000 in penalties and costs when the federal court ruled against him.

In particular, the case included findings about what parts of the building in which both parties worked were to be included as the “workplace” and secondly, what difference, if any, to the law did it make that the parties were not both employees of the same company.

The importance of the physical location issue was to eliminate from consideration a technical approach to the word “workplace”. The accountant argued that corridors and lift lobbies (common areas) were not part of the workplace and therefore any allegations of misbehaviour in these areas were not to be included in consideration of workplace harassment. However the court disagreed saying that such a distinction would tend to undermine the whole point of the legislation in relation to workplace harassment. These areas are necessary to access, to go to and from the building, to move about the workplace (e.g. common kitchens and toilets), so they needed to be included.

The court also dismissed the argument that for there to be workplace harassment, the employees concerned had to be part of the same company, to have the same employer. This was not a correct application of the law, and in fact the legislation specifically provides “It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of either or both of those persons.”

This case assists employers better understand the scope of the legislation particularly as it is a widely held misconception that sexual harassment in the workplace really just means when a work colleague says or does something at work that causes offence and/or embarrassment.  But it is not so simple, and can include visitors to a workplace, a client or customer, a person from a contractor’s workforce and so on. Given the punishing nature of the damages in this case, it is a timely reminder for employers to ensure policies are comprehensive on these two crucial points and that staff know about them.