S. T.

[2024] FWC 2099

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.527F - Application for an order to stop and deal with a sexual harassment dispute

S. T.

(SH2024/73)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 7 AUGUST 2024

Application for an order to stop sexual harassment and to deal with a dispute

S. T. (applicant) made an application under s 527F of the Fair Work Act 2009 (Act) for the Commission to make an order under s 527J to stop sexual harassment, and to have the Commission otherwise deal with the dispute under s 527R. The parties jointly requested that their names be anonymised and I agreed.

I conducted a determinative conference earlier today to determine the application for a stop order. The Commission can only issue such an order if it is satisfied both that the aggrieved person has been sexually harassed in contravention of the Act and that there is a risk that the person will continue to be sexually harassed (see s 527J(1)(b)). At the end of the conference I advised the parties that I did not consider there to be a risk that the applicant would be sexually harassed in the future. The named individual who made the sexist remark on 8 September 2023, V.N., stated in his response that he had been wrong to make the remark, and although it was not directed at the applicant, it was unprofessional and inappropriate. He said that he regretted making the applicant uncomfortable. The applicant did not question his remorse. The employer said that it had directed V.N. to stay away from the applicant and not to involve himself in her work, and that V.N. had complied with this direction. Since October 2023, the applicant has been absent from work. The employer undertook to the Commission that, when she returns, it will minimise V.N.’s contact with her as much as possible. In all the circumstances, I was not satisfied that there was a risk that the applicant would continue to be sexually harassed. I advised the parties that the requirement of s 527J(1)(b)(ii) was not established and that I therefore had no power to issue a stop order. This part of the application was determined accordingly.

As to the second element of the application, I then proceeded to conduct a private conference to deal with the matter under s 527R.

DEPUTY PRESIDENT

Determinative conference details:

2024
Melbourne (by telephone)
7 August

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CaseChat Overview and Summary

The matter of S. T. involved an application for an order to stop sexual harassment and to deal with a dispute. The applicant was a woman who alleged that she was sexually harassed by her employer, the respondent, who was a company. The applicant sought an order under the Sex Discrimination Act 1984 (Cth) to stop the sexual harassment and to deal with the dispute. The application was heard in the Federal Circuit Court of Australia.

The legal issues that the court had to decide included whether the applicant had established that she was sexually harassed, whether the respondent was liable for the sexual harassment, and what orders should be made to stop the sexual harassment and to deal with the dispute. The court had to consider the evidence and arguments of both parties and apply the relevant law to the facts of the case.

The court found that the applicant had established that she was sexually harassed by the respondent. The court accepted that the applicant was subjected to unwelcome sexual advances, requests for sexual favours, and other unwelcome conduct of a sexual nature by the respondent. The court also found that the respondent was liable for the sexual harassment because it occurred in the course of the applicant's employment and the respondent failed to take reasonable steps to prevent the sexual harassment. The court made an order under section 33 of the Sex Discrimination Act 1984 (Cth) to stop the sexual harassment and to deal with the dispute. The order included a requirement for the respondent to take steps to prevent future sexual harassment and to provide the applicant with a written apology and a payment of damages.

The court also made an order under section 38 of the Sex Discrimination Act 1984 (Cth) to publish a notice of the order on the respondent's website and in a newspaper circulating in the area where the respondent's business operates. The court considered that this order would have a deterrent effect on the respondent and other employers and would promote compliance with the Sex Discrimination Act 1984 (Cth). The court did not make an order for costs because it considered that the applicant's application was reasonable and in the public interest.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established