Introduction

The recent decision by the Federal Court of Australia in Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 addressed workplace sexual harassment under the Sex Discrimination Act 1984 (SDA). This ruling, which awarded Ms. Fiona Taylor over $268,000 in damages, underscores the critical responsibilities of employers to prevent and address sexual harassment in the workplace. With the enforcement of the positive duty to eliminate sexual harassment commencing in December 2023, this case serves as a pivotal reminder for businesses to adopt proactive measures to foster a safe and respectful work environment.

Background of the Case

Ms. Taylor, employed by August and Pemberton Pty Ltd (trading as Grew & Co) from January 2018 to August 2020, alleged that her manager, Mr. Simon Grew, sexually harassed her over a period of 22 months. The Federal Court examined various instances of inappropriate behavior, ultimately finding that Mr. Grew's actions constituted sexual harassment under section 28A of the SDA.

The Conduct

Ms. Taylor's claims included the following instances of harassment:

• Physical Contact: Mr. Grew slapped Ms. Taylor’s bottom in the office.
• Declarations of Feelings: In early January 2020, Mr. Grew told Ms. Taylor that he had developed feelings for her. Despite her clear rejection, he persisted five months later by asking if he needed to “turn his feelings off.”
• Unsolicited Gifts: Mr. Grew gave Ms. Taylor 19 gifts, including a Chanel coin purse, various pieces of jewelry, $2,000 in cash, and a Michael Kors bomber jacket.
• Inappropriate Comments: He made remarks about her appearance, such as “you have a really nice body,” “you have a beautiful body,” and “you have bedroom eyes.”

Findings of the Court

Justice Katzmann ruled that the following actions by Mr. Grew constituted sexual harassment:

• Slapping Ms. Taylor’s bottom in July 2019.
• Declaring his feelings for her in January 2020 and implicitly inviting her to enter an intimate relationship despite her clear disinterest.
• Giving Ms. Taylor gifts after his confession of feelings in January 2020, which were expressions of his affection and, therefore, unwelcome.

However, the court did not find the earlier gifts and comments to constitute sexual harassment, as they occurred before the romantic declarations and lacked sufficient evidence of Mr. Grew’s romantic interest at that time.

Victimisation

In addition to sexual harassment, Ms. Taylor claimed that Mr. Grew victimized her after she lodged a complaint with the Australian Human Rights Commission (AHRC). Following her complaint, Mr. Grew demanded the return of the gifts, accused her of theft, and threatened to report her to the police. The court found these actions to be vindictive and primarily motivated by her allegations of sexual harassment.

Damages and Compensation

The Federal Court awarded Ms. Taylor a total of $268,230, comprising:

• $140,000 in general damages for sexual harassment.
• $40,000 in general damages for victimization.
• $15,000 in aggravated damages for unwarranted allegations and threats.
• $3,000 for future out-of-pocket expenses.
• $23,070.64 for past economic loss.
• $46,284 for future economic loss.

Key Takeaways for Employers

1. Proactive Measures: With the enforcement of the positive duty to prevent sexual harassment, employers must implement robust policies, regular training, and effective reporting mechanisms. These steps are essential to meet legal obligations and create a safe workplace.
2. AHRC’s Expanded Powers: Effective from 12 December 2023, the AHRC can now investigate suspected non-compliance, issue compliance notices, and apply to the Federal Court for enforcement orders. Employers must be prepared for increased scrutiny and ensure compliance with the positive duty.
3. Significance of Context: The court’s decision emphasizes that even non-explicit actions can constitute sexual harassment when viewed in context. Employers must address all forms of inappropriate behavior promptly and thoroughly.

Conclusion

The Taylor v August and Pemberton Pty Ltd case serves as a critical reminder for employers about the importance of addressing workplace sexual harassment proactively. With new legal obligations and enhanced enforcement mechanisms in place, businesses must take decisive action to eliminate harassment and foster a respectful and inclusive workplace environment.

Savvy Workplace Solutions

Organisations depend on their people to overcome business challenges and deliver results. Savvy Human Resources consulting service for Brisbane, Gold Coast and the NSW Northern Rivers is about leveraging our know-how, experience and commercial insight to design and execute practical human resources strategies and programs that enable business performance through people performance. Learn more......

Savvy HR Services

Savvy Human Resources Consulting Services provides independent workplace investigations to a high standard of procedural and substantive fairness, intellectual rigour and sensitivity.

We use our Human Resources Consulting know-how and investigation experience to support clients to deal with informal complaints through to conducting formal site-based investigations. Learn more ...

Savvy’s trauma informed approach to workplace investigation and workplace mediation processes will assist employers to manage the risks of psychosocial hazards that might arise for participants that have experienced trauma.  

Savvy HR is a specialist consultancy with extensive experience conducting workplace investigations of sensitive matters ranging from informal complaints to complex allegations of harassment and bullying that might escalate into WorkCover claims or Fair Work Commission (FWC) matters.

For workplace consulting, employment advice, employment relations support Ballina, Brisbane & Sydney contact Savvy HR.

For Human Resources Consulting Gold Coast Human Resources Ballina Human Resources Sydney contact Savvy HR.

Prohibition on republication: No part of this publication may be copied or reproduced without the written consent of Savvy Human Resources Associates Pty Ltd (SAVVYHR).

Disclaimer: This publication is provided in good faith by way of general guidance only to assist employers and their employees and is for information purposes only. It is not to be construed by the reader as legal advice or as a recommendation to take a particular course of action in the conduct of their business or personal affairs. The Information may be based on data supplied by third parties. We do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future. You should not rely upon the material as a basis for action that may expose you to a legal liability, injury, loss or damage and it is recommended that you obtain your own advice relevant to your particular circumstances. Savvy Human Resources Associates Pty Ltd & SAVVYHR do not accept responsibility for any inaccuracy and is not liable for any loss or damages arising either directly or indirectly as a result of reliance on, use of or inability to use any information provided in this article.