A recent sexual harassment case has established that the definition of ‘workplace’ is not confined solely to a person’s physical place of work, and that behaviour outside of work may still be covered by workplace laws.
In Vergara v Ewin  FCAFC 100 the Full Federal Court upheld the earlier decision of Judge Bromberg who found that the Ms Vergara was sexually harassed on multiple occasions by Mr Ewin. Complicating factors of the case included that Mr Ewin was a contractor and not an employee, and some of the sexual harassment (which included conduct of a criminal nature) occurred outside the office: in the office building corridor, on a client’s premises, in a taxi, in a hotel close to the office, and the surrounding streets. Ms Vergara was awarded damages in excess of $200,000.
On appeal the full federal court upheld the earlier findings of fact in relation to the harassment, and the finding that the sexual harassment had begun in the office and that both parties had agreed to step outside the office to deal with the matter further.
While outside the office, on separate occasions, the harassment continued and in fact escalated. The conduct in these circumstances was found to be conduct that occurred within the ‘workplace’.
Additionally, although the perpetrator was a contractor, and not an employee, the conduct was still covered by the Sex Discrimination Act 1984 (Cth) which prohibits sexual harassment in the workplace.
Lessons for employers
Although the circumstances of this case were out of the ordinary, it serves as a strong signal that:
- the workplace may not always be strictly limited to the boundaries of the premises
- any person who is involved in work-related activities in and around that workplace is subject to the relevant workplace policies
Employers may be held vicariously liable if they have not taken reasonable steps to prevent unlawful conduct.
Reasonable steps for employers include ensuring that workplace policies set appropriate guidelines for what constitutes acceptable – and unlawful - behaviour in the workplace.
These guidelines should capture a range of situations to indicate the types of place and behaviour that are covered. These include work-related functions, interactions that start on the premises and continue outside or after work hours and visits to client premises.
The policy around unlawful conduct should specify that unlawful behaviour is strictly prohibited not just in the office but also outside of the physical boundaries of the work premises where there is a sufficient connection with work. It is important to highlight that responsibility for avoiding sexual harassment does not disappear just because the perpetrator is outside the physical workplace.
In terms of coverage, policies should extend to all workers who attend the premises or engage in work for the employer. All employees, contractors, casual workers and other agents visiting the workplace should be advised of their obligations from the outset, and should be covered by applicable workplace training where possible.
Regular training needs to include procedures so that all workers understand their obligations, who to make a complaint to, and what the consequences are for breaching a policy.
Sarah Waterhouse, Solicitor, BlandsLaw
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