Tuesday, 16 December 2014

Out Of The Office But Still Part Of The Workplace

With the silly season upon us, it is easy to think that ‘what happens at the Christmas party, stays at the Christmas party’. However – that is not the case. Employers have an obligation to ensure that the workplace is free from bullying, discrimination and sexual harassment. Therefore, the health and safety of employees at the workplace should be a top priority for employers to avoid a 2015 workplace hangover.

But just what is the workplace?

The Sex Discrimination Act 1984 (Cth) (the Act) states that it is unlawful for a person to sexually harass another person at a place that is a “workplace of either or both of those persons”. Importantly, the Act describes a workplace as “a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant”. This definition was the subject of a Full Federal Court decision earlier this year which explored just how far the term “workplace” can be stretched.

Case study: Vergara v Ewin [2014] FCAFC 100

Ms Ewin was employed as a financial controller at Living and Leisure Australia Ltd (LLA). Her co-worker, Mr Vergara, was employed by a labour hire firm as a contract accountant at LLA and reported to Ms Ewin. In 2013, the Federal Court held that Mr Vergara had sexually harassed Ms Ewin on 4 separate occasions as follows:

  • On 13 May 2009, Mr Vergara turned off the office lights and touched Ms Ewin’s hand and asked her to go to the Waterside Hotel (a pub), across the road from the LLA workplace, where he sexually propositioned Ms Ewin and tried to kiss her on King Street;
  • On 14 May 2009, Mr Vergara sexually propositioned Ms Ewin at the offices of KPMG;
  • On 15 May 2009, Mr Vergara requested a sexual favour from Ms Ewin; and
  • On 15 May 2009, following an evening workplace function at a local bar, Mr Vergara sexually harassed Ms Ewin back at the LLA offices where they also had non-consensual sexual intercourse

Ms Ewin was award $474,163 in compensation as a result of the offending behaviour. Mr Vergara appealed the decision on various grounds, including that the King Street footpath and Waterside Hotel did not constitute a ‘workplace’ under the Act.

The evidence before the Court revealed Ms Ewin wanted to move to the Hotel where there were other witnesses rather than remain at work with Mr Vergara after hours alone. In light of this, the Full Federal Court found that “Ms Ewin did not go to the Waterside Hotel in acceptance of Mr Vergara’s sexual advances but, on the contrary, because she wanted to deal with what she had repeatedly sought to discourage”.

Ultimately, it was held that “going to the Waterside Hotel was triggered by a need to deal with the resumption of Mr Vergara’s unwanted sexual advances… [which] had commenced at the workplace” and the workers were therefore “carrying out a function ‘in connection with’ being a workplace participant”.

Lessons for Employers

The boundaries of a ‘workplace’ are continually evolving and in many cases will extend beyond an employer’s place of business. In addition to Elevators, Corridors, Entrances and other common areas, the boundaries of a workplace could potentially extend anywhere the workers are carrying out some function ‘in connection with being a workplace participant’ – such as a Christmas or end of year party.

Therefore, before departing to the big end of year function, employers should ensure that all staff are aware of what is considered to be appropriate – and inappropriate – behaviour in the workplace and that it extends to beyond the 4 walls of the office.

HR Legal works with employers in managing sexual harassment and bullying claims. Please contact us if you require assistance in this area.


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.