Trakimaite v Aubertin

Case [2024] FedCFamC2G 1150

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Trakimaite v Aubertin [2024] FedCFamC2G 1150

File number(s): SYG 1114 of 2021
Judgment of: JUDGE CAMERON
Date of judgment: 8 November 2024
Catchwords: HUMAN RIGHTS – Sex Discrimination Act 1984 (Cth) – sexual harassment – sex discrimination – where applicant was an employee of the second respondent – where applicant and first respondent engaged in a consensual and non-exclusive sexual relationship – where first respondent was principal of second respondent – whether the first respondent sexually harassed the applicant – whether applicant’s employment with second respondent was terminated on the basis of her pregnancy
Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 46PSA

Fair Work Act 2009 (Cth) s 125

Sex Discrimination Act 1984 (Cth) ss 5, 7, 14, 28A, 28B, 106
Cases cited:

Hughes v Hill (2020) 277 FCR 511

Richardson v Oracle Corporation Australia Pty Ltd (2013) 232 IR 31
Division: General
Number of paragraphs: 146
Date of last submission/s: 8 May 2023
Date of hearing: 30 – 31 January 2023
Place: Sydney
Counsel for the Applicant:  Mr L Finch(Direct Brief)
Counsel for the First and Second Respondents: Ms T Wong
Solicitor for the First and Second Respondents: Mills Oakley

ORDERS

SYG 1114 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

SONATA TRAKIMAITE

Applicant
AND:

RICHARD DESIRE AUBERTIN

First Respondent

AXE CONSTRUCTION GROUP ACN 631 236 274

Second Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT DECLARES THAT:

1.The first respondent sexually harassed the applicant on 31 October 2020. 

2.The second respondent is vicariously liable for the first respondent’s sexual harassment of the applicant. 

THE COURT ORDERS THAT:

3.Judgment for the applicant against the respondents jointly for $25,000. 

4.The matter stand over for submissions on costs. 

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CAMERON

INTRODUCTION

  1. On 21 June 2021, following the termination of a complaint she had made to the Australian Human Rights Commission (Commission), the applicant, Ms Trakimaite, filed the present application.  She alleges that during her employment from 20 August 2020 to 29 December 2020 as an office administrator with the second respondent, Axe Construction Group Pty Ltd (Axe Construction), she engaged in a consensual and non-exclusive sexual relationship with the first respondent Mr Aubertin, who was the sole owner and director of Axe Construction, which resulted in her falling pregnant in late 2020.  Ms Trakimaite alleged that on one occasion in October 2020, in contravention of the Sex Discrimination Act 1984 (Cth) (SD Act

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Trakimaite v Aubertin [2024] FedCFamC2G 1150
Case
[2024] FedCFamC2G 1150
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms. Trakimaite brought a case against Mr. Aubertin and Axe Construction, alleging that Mr. Aubertin sexually harassed her contrary to the Sex Discrimination Act 1984 (Cth) and that her employment was terminated because of her pregnancy, also in contravention of the same Act. Ms. Trakimaite claimed that her consensual sexual relationship with Mr. Aubertin, the principal of Axe Construction, turned coercive when he pressured her into having sex by threatening to terminate her employment. She further alleged that after she informed Mr. Aubertin of her pregnancy, he demanded she terminate it and subsequently dismissed her from her position.

The court had to determine two primary legal issues: firstly, whether Mr. Aubertin's conduct on 31 October 2020 amounted to sexual harassment under sections 28A and 28B of the Sex Discrimination Act; and secondly, whether Ms. Trakimaite's employment was terminated due to her pregnancy, in breach of sections 7(1)(a) and 14(2)(c) of the Act. The court examined the nature of the relationship between Ms. Trakimaite and Mr. Aubertin, the circumstances surrounding the alleged harassment, and the subsequent termination of her employment. The court also had to consider whether Axe Construction could be held vicariously liable for Mr. Aubertin's actions under section 106 of the Act.

The court concluded that Mr. Aubertin's conduct on 31 October 2020 did indeed constitute sexual harassment. It found that the demand for sexual intercourse, combined with the threat to terminate her employment if she refused, created an environment where Ms. Trakimaite felt coerced into having sex. The court also determined that Ms. Trakimaite's employment was terminated because of her pregnancy, as evidenced by Mr. Aubertin's explicit demand for an abortion and his subsequent actions to exclude her from the workplace. Consequently, the court found in favour of Ms. Trakimaite and awarded her $25,000 in damages. The matter concerning her costs will be re-listed for further submissions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In a second further amended statement of claim filed on 27 May 2022, Ms Trakimaite contended that:(a)Mr Aubertin had sexually harassed her contrary to ss.28A & 28B of the SD Act;(b)Mr Aubertin had discriminated against her on the grounds of her pregnancy contrary to ss.7(1)(a) and 14(2)(c) of the SD Act; and(c)under s.106 of the SD Act Axe Construction was vicariously liable for those unlawful acts of Mr Aubertin. Background It was alleged that:(a)in August 2020, Ms Trakimaite commenced work as a permanent part-time bookkeeper with Axe Construction, Mr Aubertin saying to her: Ravina [Gahlac] will set you up in the system with your pay rate and after three months I will pay you more. I don 't know how many hours you will work but it will depend on how much work there is, it will be around 3 days per week, if it gets busy I will need you to work full time. (b)Ms Trakimaite’s probationary period of 3 months concluded in November 2020 and she continued her employment with Axe Construction; and (c)at all relevant times, Ms Trakimaite was also employed as a waitress at The Men’s Gallery. Sexual Harassment Claim Ms Trakimaite alleged that: (a)on or around 1 October 2020 she and Mr Aubertin commenced a sexual relationship; (b)on 31 October 2010 she twice refused Mr Aubertin’s invitation to have sex before subsequently agreeing, and having sex, because his conduct caused her to fear that she would lose her job if she did not; (c)from 31 October 2020 to 22 December 2020 she and Mr Aubertin continued their sexual relationship, having sex around once per week at Mr Aubertin’s home and on one occasion at Ms Trakimaite’s; and (d)she was employed by Axe Construction until 30 December 2022. Ms Trakimaite alleged that by reason of his conduct on 31 October 2020:(a)Mr Aubertin sexually harassed her within the meaning of s.5 of the SD Act in that: (i)he made a demand for sexual intercourse which she initially refused; (ii)he threatened to terminate her employment and she subsequently has sex with him but did not consent or agree to it voluntarily or freely; and (iii)having had sexual intercourse she continued to be employed by Axe Construction; (b)Mr Aubertin had made an unwelcome sexual advance, or in the alternative an unwelcome request for sexual favours, which he knew or ought to have known would offend, humiliate or intimidate her, amounting to sexual harassment within the meaning of ss.28A of the SD Act and had therefore contravened s.28B of the SD Act. Discrimination Claim Ms Trakimaite also alleged that: (a)on or around 19 November 2020, she and Mr Aubertin engaged in consensual sexual intercourse without a condom; (b)between 1 October 2020 and 19 November 2020 she had sex only with Mr Aubertin;(c)on 22 December 2020 she told Mr Aubertin that she was pregnant with his child; (d)on 24 December 2020, she underwent tests at Bondi Junction 7 Day Medical Centre which confirmed that she was pregnant. On the same day, Mr Aubertin asked her to terminate the pregnancy in a text message saying: Sonata don't ever talk to me like that your on your own I want you to abort this baby your crazy. (e)Mr Aubertin told her when she attended his home at around 8pm on 29 December 2020 that he would not support her if she carried through with the pregnancy and told her to “get out”; (f)over 29 and 30 December 2020 Mr Aubertin demanded that she return the Axe Construction office keys to him and sent her text messages such as:your now on your own I want nothing to do with this bullshit good keep out of my life fuck off;(g)at around 11:50am on 30 December 2020 Mr Aubertin attended her home and demanded that she return the office keys to him and knocked his fists aggressively on her front door. Ms Trakimaite returned the office keys to Mr Aubertin by pushing them under the front door of her flat; (h)at 11:58am on 30 December 2020 she sent Mr Aubertin a text message saying: Please send me termination letter;(i)on 14 January 2021 she sent Mr Aubertin copies of a urinalysis test result and an ultrasound image confirming her pregnancy and a message that read: maybe I’ll cancel my appointment tomorrow, I think I need to talk to Psychologist first. Mr Aubertin replied saying: Its your life not mine I will now block you as you are being incredibly difficult;(j)in or around early January 2021 Mr Aubertin employed a replacement bookkeeper. Relief Sought

Evidence

Evidence Before The Court

When Ms de Caires inquired what she meant by forced, Ms Trakimaite said:he told me that if I didn’t have sex with him that I didn’t have a job anymore.Ms de Caires deposed that Ms Trakimaite said that she was “scared to lose” her job, and that she could not leave because he:promised me a career and a pay rise Ms de Caires deposed that Ms Trakimaite appeared to her to be stressed and worried. RESPONDENTS’ EVIDENCERichard Desire Aubertin Mr Aubertin deposed to being the sole director of Axe Construction and that his duties included running the operations of the business and employing and managing staff. Mr Aubertin deposed that he had met Ms Trakimaite socially around April 2016 and that on 19 August 2020 she contacted him and expressed interest in working for him as an office administrator. Employment Mr Aubertin’s evidence was that Ms Trakimaite was employed by Axe Construction as a casual office administrator; she did not have fixed working hours and would complete a timesheet logging her hours worked. His evidence was he and Ms Trakimaite had verbally agreed that her employment was subject to a trial period of 6 months and that at the start of Ms Trakimaite’s employment, he had instructed Ravina Gahlac to train her through a handover of her duties. He deposed that on 24 August 2020 he said to Ms Trakimaite: Ravina will set you up in the system with your pay rate and after 3 months I will pay you more. Mr Aubertin deposed that Ms Trakimaite worked at Axe Construction’s office and that on 28 August 2020 he provided her with the office keys and a security card. On 24 October 2020 he enrolled her in a bookkeeping course to improve her professional skills. Personal Relationship Mr Aubertin’s evidence was that during Ms Trakimaite’s employment, he and she had had a non-exclusive, consensual romantic and sexual relationship. He deposed that consistent with that relationship he and Ms Trakimaite: (a)exchanged text messages with terms of love and affection; (b)exchanged photos and videos via text message, including Ms Trakimaite messaging him unsolicited provocative photos; (c)spent substantial time together outside work with friends, on dates, trips and at each other’s homes; and (d)would regularly engage in unprotected sexual intercourse. Mr Aubertin’s evidence was that during their relationship, he and Ms Trakimaite faced some language and cultural barriers because of Ms Trakimaite’s Lithuanian background, with English as her second language. His evidence was that sometimes she was confused in their communications in English due to the cultural or language differences. 31 October 2020 Mr Aubertin deposed that on 31 October 2020, while intoxicated, he sent messages to Ms Trakimaite inviting her to his home, which she declined. He deposed:... I attempted to make other plans to see her as I missed her. Ms Trakimaite was playing hard to get which made me question whether she was really interested in me at all or just wasting my time. His evidence was they exchanged messages as follows: Mr Aubertin: I tried calling you you suck never again I call you don’t forget to do the invoicing Mr Aubertin: I want to take you shopping right now you are the love of my life take advantage before I find her for real Mr Aubertin: Love you with all my hearts (two hearts emoji)Mr Aubertin: Nice response you suck right nowMs Trakimaite: If y want let’s go for dinner 6:30 Mr Aubertin: I want to you cum over to my place and I fuck you like crazy tonight I miss all of you now baby girl I’m so wanting you Ms Trakimaite: Nah lol. Maybe tomorrow. Mr Aubertin: Ok let’s just look at movie then I take you to work Mr Aubertin: I thought my first lov text would work you confuse me Mr Aubertin: You are the one going on dates not me Mr Aubertin explained the last of those texts saying: I had also asked Ms Trakimaite to come to my residence however when she declined, I was slightly agitated as she had gone on a date the night previously yet did not want to spend time with me. This was consistent with our personal relationship.

Decision

Reasons for decision

On the face of things, Ms Trakimaite is entitled to an order for her costs. That matter will be re-listed for submissions in light of s.46PSA of the AHRC Act. CONCLUSION There will be judgment for Ms Trakimaite for $25,000.

Ratio Decidendi

Legal Principle Established

Mr Aubertin’s evidence was that he later paid the $500 abortion fee directly to Ms Trakimaite upon receiving the invoice and did not contact her again until March 2021. CONSIDERATION This case has the following elements:(a)whether, in all the circumstances, Mr Aubertin’s conduct towards Ms Trakimaite on 31 October 2020 amounted to sexual harassment contrary to s.28A of the SD Act; and(b)whether Ms Trakimaite was dismissed from her employment and, if so, whether she was dismissed contrary to s.7 of the SD Act because she was pregnant. Evidence concerning what happened after Ms Trakimaite returned her office keys and security pass, which mark the latest possible point of her employment with Axe Construction, is not particularly helpful in the determination of those questions.Sexual harassmentEvents on 31 October 2020? The terms of s.28A of the SD Act were set out earlier in these reasons. As noted by Perram J in Hughes v Hill (2020) 277 FCR 511: 21 There are essentially three elements to this provision.22 First, the Court is directed by subs (1) to ask itself whether there has been any of three identified forms of conduct: a sexual advance, a request for sexual favours or other conduct of a sexual nature. Each of these concepts involves the application of a defined legal standard to the facts as found. The Court must determine, on those facts, whether there was a sexual advance, a request for sexual favours or other conduct of a sexual nature. It is a question for the Court and it is a question of fact. In determining whether there has been conduct of a sexual nature the Court applies, of course, the definition of that term in s 28A(2). 23 Secondly, if an identified form of conduct is established subs (1) also requires that it must be ‘unwelcome’ to the person allegedly harassed. This is a question of fact which is subjective and which turns only on the allegedly harassed person’s attitude to the conduct at the time. Even if the Court has concluded under the first limb that one person has engaged in conduct of a sexual nature towards another person, this will not constitute sexual harassment under the provision if it was not actually unwelcome in this sense. Ordinarily this will be proved by the person allegedly harassed giving evidence that the conduct was unwelcome but that mode of proof is not dictated by the statute and proof of this fact, like proof of any other fact, may be done by a variety of means. In some cases, I suspect this is one, the unwelcome quality of the conduct will be painfully obvious.24 Thirdly, once it be established that there was conduct of a sexual nature towards another and that the conduct was unwelcome, the provision imposes an objective delimitation on the provision’s ambit. The ‘circumstances’ must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct. The ‘circumstances’ are defined broadly in s 28A(1A) and include, importantly for this case, the relationship between the harasser and the harassed.Was there a sexual advance, a request for sexual favours or other conduct of a sexual nature?