Legal Briefs: Case serves as a warning

In order to maintain a healthy working environment, it is important to treat co-workers with respect and be aware of boundaries.
In order to maintain a healthy working environment, it is important to treat co-workers with respect and be aware of boundaries.

READERS should be aware that a workplace is covered by many pieces of legislation including the Occupational Health and Safety Act and the Sex Discrimination Act 1984 (SDA). 

However, it is not always abundantly clear where a workplace ends and begins. 

Once you have left the office or departed from the factory premises, are you free of your office obligations? 

A recent case in the Full Court of Federal Court in Vergara v Ewin  (2014) sets the bar very high in regard to extending the definition of a workplace.

In this case a contactor accountant at work inappropriately touched a female  supervisor employed by Living Leisure Australia Limited after turning the lights off in a shared office.

He remarked to her that he would only turn the lights back on if she agreed to come to talk to him at the Waterside Hotel in King Street, Melbourne, as he wished to tell her something. 

The female worker reluctantly agreed upon the basis that she wanted to once and for all rebuff the accountant's sexual advances. 

However, at the hotel, the accountant in very explicit terms proposed that they have an affair. She refused.

Two days later after a heavy bout of drinking following a work function at the Melbourne Aquarium on a Friday night, the court found that the accountant had, on the balance of probabilities, after further drinks at a neighbourhood bar engaged  in sexual intercourse with his fellow worker when she had been heavily intoxicated and disoriented and close to unconscious in the office corridor..

The court held that the accountant had been guilty of breaching the SDA on three occasions and, interestingly, this included the activity at the Waterside Hotel and an attempt to kiss the respondent when they were walking along King Street to the train station.

Justices North and Pagone's finding was on the basis that there was a sufficient workplace nexus where the workplace participant "carries out functions in connection with being a workplace participant"  to satisfy the definition of workplace under section 28B(7) of the SDA. 

The conversations in the hotel were deemed to represent the workplace because the judges found that the participants were engaged in carrying out functions in connection with being a workplace participant in that the female supervisor had clearly engaged and attended the hotel  in pointing out to the accountant that  his activities represented a harassment and in effect a breach of his legal obligations in the workplace under the SDA. 

The fact that the accountant was not an employee but a contractor was not relevant as s.28B (7) clearly includes a contract worker as a workplace participant.

Thus, readers, whether  employers, employees or contractors, need to have very careful understanding of the extensive legal obligations that cover workplace activity which can extend well beyond most readers' understanding of a workplace  

Disclaimer:Readers should seek independent legal advice as this article is for information purposes only. Geoff Bowyer is a director at Beck Legal, Bendigo.


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