Andrew Douglas: Go to the major topic.
Kim McLagan: Yeah.
Andrew Douglas: Which is the sexual harassment provisions that were introduced into the Fair Work Act in 2023.
Kim McLagan: Mm-hmm.
Andrew Douglas: I thought 2024, but I’m wrong. 6, March, 2023.
Kim McLagan: Yep. Correct.
Andrew Douglas: But I’m getting old.
Kim McLagan: Aren’t we all?
Andrew Douglas: The important part about that is it allowed you to proceed for compensation claim.
Kim McLagan: Mm.
Andrew Douglas: But we’ve seen almost no case law for two years, and then suddenly in the last six months, we’ve seen an explosion of case law. So we know now that for non-touch sexual harassment where harm has occurred, it’s likely you’ll get greater than 50% of the award. Okay?
Kim McLagan: Mm.
Andrew Douglas: So we’ve got a case that I think really shows how silly arguments can get in the middle of it. Whereas a person from 2020 through to the time of their departure was being sexually harassed, and described as a course of conduct.
Kim McLagan: Mm.
Andrew Douglas: And the initial commissioner said, “Well, I don’t have a jurisdiction.” ‘Cause the course of conduct started before the legislation.
Kim McLagan: Yeah.
Andrew Douglas: I don’t know what drug she was on. I mean, sexual harassment happens each day. It’s an incident that occurs.
Kim McLagan: Mm.
Andrew Douglas: Sexual harassment can be one incident. So why you think you have to deal with the course of conduct? Not surprising when the Full Bench got hold of it and sort of looked to the ceiling, rolled their eyes a couple times and said, “No sexual harassment occurs when it occurs,” and the past pre-enactment is relevant towards a course of conduct in saying a course of conduct was occurring, but is not the sexual harassment for the purpose of it. That’s really what the case says, and I think it’s very, the difficulty here was it was very poorly drafted as an application and that got in the road of everyone thinking about it.
Kim McLagan: Yeah.
Andrew Douglas: But we now know very clearly that if you sexually harass someone before 6 March, 2023 and continue to do afterwards, what you did before remains relevant to the nature of the conduct. If it is not giving rise to the jurisdiction, the jurisdiction arise after by the conduct that occurs there, but the other’s are relevant. So we are seeing a body of law forming around what this is, and we are starting to see clearly plaintiff lawyers adopting for quick return on investment by going to a jurisdiction which resolves everything in five to six months, rather than sex discrimination provisions where you could be still running three to four years later. So I think for everyone out there, be aware this is a place we’re going to see a lot more of.
Kim McLagan: Yeah.
Andrew Douglas: Let’s jump over to the case study.
Kim McLagan: Okay. Devon Dish was a food processing plant in rural Victoria. Historically, it had been a male-only work place. However, since 2021, the new owner had made a deliberate effort to employ more women. Bev had worked on the Preserved Sausage Team since 2022. Her team leader, Wes, was a local football hero and was well-liked by the men he worked with. He was a natural leader. However, Wes was somewhat old fashioned. He would regularly step in to help women when the work was physically demanding and would often allocate them to cleaning duties rather than processing work. His intentions were well-meaning.
On the Preserved Sausage Team, Bev was the only woman. There were five processing teams, all performing unskilled processing work. In addition, there was one team of boners and butchers. Wally worked alongside Bev. He was a former football teammate of Wes. Wes and Wally often engaged in sexualized banter with each other. Although the comments were not directed at Bev, she found them offensive. Wally was also interested in Bev and would occasionally make kind but somewhat personal comments to her. Over time, Bev became increasingly uncomfortable with his behavior. Eventually, Wally asked Bev out on a date and while doing so, gave her a mock cuddle.
Bev responded with, “maybe,” simply to get him to let her go, so that she could leave the situation. That evening, Bev received several text messages from Wally telling her how beautiful she was and suggesting places they could go for dinner. She didn’t sleep. Both Wally and Wes were well-known men in the local community and Bev felt trapped. The following morning, Bev spoke to HR manager, Penny. Penny assured her that she would deal with the issue. A few hours later, Wes approached Bev. He was clearly unhappy and asked to speak with her privately. They moved away from the production line and spoke quietly.
Wes told Bev that he had spoken to Wally and that Wally had not intended to upset her. According to Wes, Wally simply liked her and believed that she liked him in return. Wes described the incident as a misunderstanding. Bev explained that she felt uncomfortable around Wally. Wes assured her that everything would be fine. For the remainder of the day, Wally avoided Bev. However, after a few drinks that evening, he sent her additional text messages, apologizing, telling her how much he cared about her, and insisting that he never intended to hurt her. His final message included a string of heart emojis.
Again, Bev was unable to sleep. The next day, Bev called HR and explained that she did not feel safe coming to work. Penny encouraged her to attend work and suggested that they hold a meeting with Wes and Wally to resolve the issue. Bev agreed and attended work. However, during the meeting with Wes and Wally, she quickly realized that the situation had changed. Both men appeared cold and angry, and Wally showed little remorse. Summoning all her courage, Bev asked whether Wally could be transferred to another team, explaining that their working relationship had been damaged and that she no longer felt safe working with him. Wes immediately became angry. “I have worked with Wally for 15 years and played football with him my entire life,” he said. “I’m not moving him. However I can find you a position on another team.”
Andrew Douglas: All right.
Kim McLagan: Good one.
Andrew Douglas: So, question one. Does Bev have a strong workers’ compensation claim?
Kim McLagan: Yeah, without a doubt.
Andrew Douglas: Can’t lose that one.
Kim McLagan: No defense to this one. No reasonable management, and it’s certainly not usual or typical.
Andrew Douglas: Unusual or untypical, is it now?
Kim McLagan: No. All good.
Andrew Douglas: Okay, two, has there been a breach of workplace health and safety law and if so, by whom? The answer is yes.
Kim McLagan: Mm-hmm.
Andrew Douglas: So that reasonably practical issue, were there hazards? Yes. The sexual harassment is most definitely a hazard. It’s most definitely sexual harassment, and it was early on, it was discrimination as well. Treating someone differently because of their gender. So was there hazards? Yes. What was the level of risk? High. What were the controls that were exercised? None.
Kim McLagan: Yeah .
Andrew Douglas: Okay. Then you go to duties. Was it a safe workplace? No. Was it, you know, were there being properly supervised? No. Was there a system that prevented? No. Were they monitoring a health? No. It’s not looking very good at the moment.
Kim McLagan: No.
Andrew Douglas: So, I think you got to a stage where there’s clear breaches of primary duties by Wes, by Wally, Section 25, duty to exercise reasonable harm, not to harm, and for everyone else, I’ve forgotten the number in the WHS, but the same.
Kim McLagan: Mm.
Andrew Douglas: So we’ve got primary duty breaches. The next question is whether that is elevated by the nature. Was there a risk of real harm? Danger of a serious harm or death as a result of it? And were they indifferent? I’m afraid we is getting very close to reckless endangerment at this stage. Wouldn’t be charged with it, but it’s on the edge. So organization liable, Wes liable, Wally liable.
Kim McLagan: Yeah. Okay.
Andrew Douglas: Okay?
Kim McLagan: Does Bev have a general protections claim under the Fair Work Act? That’s really easy, isn’t it?
Andrew Douglas: Yes. Yeah.
Kim McLagan: Definitely.
Andrew Douglas: So again, has exercise rights and does have protections under the act, and they’re treated adversely, so yes.
Kim McLagan: Does Bev have a sexual harassment claim under the Equal Opportunity Act and the Sex Discrimination Act? Had there been victimization? Who could Bev bring a claim against? Was it a hostile workplace under the Sex Discrimination Act?
Andrew Douglas: So, I just want to start it. Let’s go backwards.
Kim McLagan: Mm.
Andrew Douglas: The comments that were made, which weren’t directed at Bev is a hostile workplace, and so in plaintiff’s proceedings, she’ll always have pleaded the hostile workplace first, you know, and this was a place where sexual misbehavior was expected.
Kim McLagan: Oh. Yeah.
Andrew Douglas: It was cultural, and that really goes to damages when you go to the individual part. Was this person sexually harassed? Now, sending of text messages after hours saying you’re beautiful, doing those sort of things after being told not to, clearly crosses any legal line and moves into sexual harassment, ’cause it’s unwelcome, and it’s been said it’s unwelcome and that’s the test.
Kim McLagan: Mm.
Andrew Douglas: So yes, there is. Then the failure to move or separate or put a control in is required by safety law, is exactly what victimization is about. I raised with you I feel unsafe, and you say, “No. You move.”
Kim McLagan: Mm.
Andrew Douglas: I treat you differently because of the complaint you raised. So yes, all of them.
Kim McLagan: Yeah.
Andrew Douglas: What’s our next question?
Kim McLagan: Does Bev have a sexual, oh hang on.
Andrew Douglas: No, we’ve had that one, we just had. I reckon that could be it, you know?
Kim McLagan: No, no, no, no. Sorry, wrong. Does Bev have a sexual harassment claim under the Fair Work Act?
Andrew Douglas: Ah yeah!
Kim McLagan: What was the relevance, if any, of the sexualized workplace conduct that occurred before March ’23 in assessing the appropriateness of conduct directed towards Bev?
Andrew Douglas: Okay, so this is Brawley’s case, the one we just talked about. So yes.
Kim McLagan: Yeah.
Andrew Douglas: Sexual harassment test, same. So definitely sexual harassment. There was 2022 conduct which predated March, 2023.
Kim McLagan: Yeah.
Andrew Douglas: I think what that shows is it goes to the nature of the workplace, because the harassment itself had not happened, but the conduct of a sexualized nature, the hostile workplace did.
Kim McLagan: Yep.
Andrew Douglas: So what would that do? It would increase the level of compensation. So it doesn’t go to jurisdiction, but it does go to the severity of what was occurring, the cultural issues that are there. So, interesting work.
Kim McLagan: That’s it. Okay.
Andrew Douglas: Yeah, well that’s it. We’re done. Cool.
Kim McLagan: Yeah.
Andrew Douglas: Yeah. Well done.
