If anyone has been ignoring sexual harassment in the workplace, the case of Vergara v Ewin (FCAFC) should cause everyone to start taking the issue seriously.
It’s no longer just about unwanted behaviour around the office that employers need to be worried about. What staff get up to outside office hours should be of equal concern.
In Vergara v Ewin, the plaintiff was awarded nearly $500,000.00 in damages after the Federal Court found that a pub, at which an encounter between two colleagues took place after work was considered a “workplace”.
Ms Ewin was employed by Living and Leisure Australia as a chartered accountant and was sexually harassed on several occasions by Mr Vergara who was also employed by the company as an accountant on a casual basis.
Some examples of Mr Vergara’s conducted included:
- Turning off the lights in the office that Ms Ewin shared with Mr Vergara, walking behind her and trying to touch her in the dark, telling her she should finish work;
- Enticing Ms Ewin to come to the pub with him across the road by telling her that he would turn the light back on if she did as he had something he wanted to tell her;
- While at the pub, proposing that the two of them have an affair and later trying to kiss her. Ms Ewin, who is married declined his proposition.
Further, the following night, after an afternoon drinks function, at the Melbourne Aquarium, the Court found that Mr Ewin likely engaged in sexual intercourse with Ms Ewin, which she had no recollection of.
The Court made this finding based on circumstantial evidence which included Ms Ewin waking up the following day with physical symptoms consistent with penetration.
Why did Mr Vergara’s conduct constitute sexual harassment in the workplace?
The Court found that the visit to the pub by Ms Ewin was in response to the need to deal with Mr Vergara’s unwanted sexual advances which had commenced at the workplace. Therefore, each location at which the sexual harassment occurred, could be considered a “workplace”.
What can employers learn?
Employers need to remember that if a staff member goes to a place outside work, that place can still be viewed a workplace as long as there is a sufficient connection to the workplace as was the case in Vergara v Ewin.
The riskiest time for employers is obviously during the Christmas party season where staff are regularly attending “post work” functions which may not in the first instance be seen as having a connecting with the workplace.
By having strict policies and procedures in place, a safe workplace can be fostered and employers can protect themselves from liability.
While having a “Mr Vergara type” in the workplace probably can’t be avoided altogether, having policies in place is at least a step in the right direction.
Once policies and procedures are in place, it’s critical that they be enforced without exception.
If you have any questions in relation to this issue, or need assistance in preparing your policies and procedures, please contact me.