The case of Ewin v. Vergara involved co-workers in a Melbourne accounting firm. Ms Ewin and Mr Vergara initially struck up a friendship, working on joint matters and going jogging together at lunchtime.
The relationship deteriorated however when Mr Vergara attempted to take the friendship to the next level. Ms Ewin was married and rejected Mr Vergara’s attempts to establish a relationship.
The Sexual Discrimination Act prohibits sexual harassment in a workplace, which is defined as “a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant”.
Ms Ewin’s allegations of sexual harassment by Mr Vergara included conduct occurring in a pub after work; working back at the office after-hours; outside a hotel; in a taxi travelling to a work meeting; and at a work function where Ms Ewin became intoxicated and “blacked out”.
The conduct complained of included turning the lights off at the office and inappropriate touching; use of sexually explicit language; forced kissing; and sexual intercourse without consent in the corridor & lift of the office.
The Court held that Mr Vegara’s conduct in the office, in the taxi and at the work function amounted to a breach of the Sexual Discrimination Act. The sexual harassment in the office and taxi were related to Ms Ewin performing her work responsibilities, and so fell within the definition of “workplace”. The non-consensual intercourse was also found to have occurred in the workplace as the Court implied that the entrance, lift, corridor and other common areas of an office formed part of a “workplace”.
Mr Vergara was ordered to pay Ms Ewin over $470,000 in damages.
This case demonstrates that any place (including a vehicle) which is attended by an employee for the purpose of performing work duties will be classified as a “workplace”.
It is therefore important for employers to implement an anti-discrimination policy and have procedures in place for dealing with allegations of sexual harassment. To avoid becoming the subject of a case under the Sexual Discrimination Act, contact the HR team at Everingham Solomons where Helping You is Our Business.
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