In the case of Ewin vs Vergara
it was alleged the contractor (Vergara) pursued the female employee in an “aggressive and persistent” manner despite her rejections and that after a work party the contractor sexually assaulted the victim in a corridor. Ewin reported the incident to the police and resigned, and subsequently commenced proceedings against Vergara, the employer of the Vergara and her own employer. The proceedings against her employer and Vergara’s employer were discontinued following mediation.
Meanwhile proceedings against Vergara proceeded under the Sex Discrimination Act (SDA). Vergara, who admitted there was sexual activity but denied rape, claimed that as a contractor he was not subject to the SDA. He also argued the corridors and areas adjacent to a place of work such as elevators (where some of the conduct occurred) do not make up part of the workplace. The court however, rejected the defence stating the Act was designed to protect participants regardless of their employment types. It also rejected the argument the incidence occurred outside of the workplace adding that the intent of the legislation would be undermined is associated common areas were interpreted as falling beyond the workplace scope of the SDA.
Justice Mordecai Bromberg who presided over the case ordered the judgment against Vergara for work-related sexual harassment.
Belinda Winter, Partner, employment and workplace relations at Cooper Grace Ward stated three key takeaways from the case:
- Employers who engage contractors have a duty of care to ensure, so far as is reasonably practical, that the contractor's conduct does not adversely affect the safety of its employees (or other workers). Employers must be aware that a 'workplace' extends to areas associated with the workplace such as elevator, corridors and entrances.
- Conduct outside of working hours, for example during or after work functions, can also expose an employer to liability for the conduct of its contractors and employees.
- Care should be taken by employers to develop preventative measures such as creating, implementing and enforcing a sexual harassment and bullying policy and a complaint handling system. Contracted workers should also be included in this process.
Employers are also being reminded as a result of the case that the protections in the SDA apply to all ‘workplace participants”, which includes contractors.
The Federal Court awarding $476,000 in damages to a female employee after finding she was sexually harassed by a contractor has turned up a number of key lessons for employers.