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Sexual Harassment—The topic of the moment

Sexual Harassment—The topic of the moment

The Brittany Higgins allegations, the rape allegations against Attorney General Christian Porter and the review of workplace parliamentary culture and treatment of women at work has been a watershed moment in this country. The courts have been dealing with these issues for forty years, and the most recent is important for several reasons. Sexual harassment causes stress, medical conditions and real loss. This case highlights some of these issues.

The case concerned an appeal from the Federal Circuit Court that held that a Mr Hughes, a principal of a law firm in New South Wales, sexually harassed a former female employee, Ms Hill, over the course of her employment within the meaning of the Sex Discrimination Act 1984 (Cth). Ms Hill was awarded damages (general and aggravated) in the sum of $170,000.

Mr Hughes appealed to the Federal Court because:

  • The evidence did not support that he sexually harassed Ms Hill because he was seen to be being like Mr Darcy in Pride and Prejudice (an eighteenth century romantic novel by Jane Austen);
  • The award of $120,000 for general damages was manifestly excessive; and
  • There was no basis for the award of aggravated damages in the sum of $50,000.

In a terrible case of constant and unremitting sexual harassment, Mr Hughes lost.

Facts

Ms Hill started employment working in 2015 as a paralegal at a small law firm in northern New South Wales. She met Mr Hughes when he acted for her as a solicitor in a mediation with her former husband. During that mediation, Mr Hughes obtained confidential and personal information about Ms Hill which he subsequently used in the legal proceedings. She was then employed by the lawyer after acting for her in the mediation.

Throughout Ms Hill’s employment, Mr Hughes bombarded Ms Hill with highly inappropriate emails of a personal nature, expressing his desire to be with her. Further, Mr Hughes demanded hugs from Ms Hill whilst in his underwear on a work trip in Sydney.

Alarmingly, after Ms Hill had repeatedly confronted Mr Hughes to stop sending her personal emails and harassing her, Mr Hughes emailed Ms Hill words to the effect that her work output was not good enough because they were not lovers.

The lower court held that Mr Hughes sexually harassed Ms Hill within the meaning of the Act. His conduct was described as “despicable and improper”.

Decision of the Federal Court

The Federal Court said Mr Hughes was described, among other things, as:

  • having a profound power imbalance over Ms Hill and exploiting that power imbalance;
  • not being a decent person; and
  • exposing Ms Hill to almost intolerable stress.

The judge explained the meaning of sexual harassment in section 28A of the Act. In particular, the three elements that must be satisfied are:

  • the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
  • engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
  • in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The lawyer really thought he was expressing his love for his employee – he was wooing her in a delusional way. Referring to Mr Darcy in Pride and Prejudice, Mr Hughes attempted to argue that “all he had done was to make expressions of love and affection to evince a desire to pursue a romantic relationship”. However, overall his pursuit was sexual and this conduct constitutes sexual harassment.

The Federal Court also rejected Mr Hughes’ arguments that the award of damages should be set aside. Based on the evidence of Ms Hill, including expert medical testimony, it was clear that the sexual harassment by Mr Hughes resulted in the progressive deterioration in her psychological and physical health. The Federal Court described the award of general damages as the ‘ruin of a person’s quality of life worth’ and rejected Mr Hughes’ contention that it was not worth $120,000 in the case of Ms Hill.

In respect of the award of aggravated damages, the Federal Court reiterated that Mr Hughes’ use of information during trial which he obtained in the course of representing Ms Hill as her solicitor was reprehensible, as an understatement. The Federal Court saw no error in the trial judge’s award of aggravated damages.

Justice Perram said:

“the trial judge was correct to condemn [Mr Hughes’] conduct of the trial as, in effect, a continuation of his harassment of [Ms Hill]. This appeal is devoid of merit and I would infer was pursued for the same purpose. Some of the submissions were, in my opinion, insulting. It should not have been brought and, in my opinion, should be emphatically dismissed.”

Take Home Messages

The culture of a workplace is determinative of the working relationships between employees. Culture really means the way we behave.

While it is important to maintain a positive workplace culture, employers need to set clear boundaries about what constitutes acceptable and unacceptable behaviour, including via electronic communications, such as email, text and social media.

Workplace bullying and harassment policies should deal with sexual harassment and employees should be encouraged to raise any concerns of inappropriate behaviour through appropriate process, which includes making reports to other employees or managers who do not hold a power imbalance over the complainant.

It is not only large organisations that have these issues. Small business does too, and the effect can be greater in a small working environment.

 


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