Sex Discrimination Act At Workplace

Running head: WORKPLACE LAW
WORKPLACE LAW
Name of the Student
Name of the University
Author Note

1WORKPLACE LAW
Issue
 The issue in the given case is to determine whether Mr Claudio Vergara sexually
harassed Ms Jemma Ewin.
 It is also to be determined whether the places where Ms Ewin, if harassed, falls under
the purview of ‘workplace’.
 It needs to be determined whether Ms Ewin could hold her employer vicariously
liable for the sexual harassment.
Rule
The Sex Discrimination Act prohibits employer, employee, partners and contractor
from sexually harassing or discriminating with others in the workplace. In case of
contractors, the complaint of sexual harassment or discrimination must be proved to have
occurred in the workplace. A ‘workplace’ is, therefore, defined as the place where workplace
participants carry out functions of their work or related to work (Ewin v Vergara (No. 3)
[2013] FCA 1311). In case of employers, fellow employees and partners, workplace shall be
denoted as any place where the aggrieved party and the defendant has been together for
matters related to their professional work, like business trips. Therefore it could be
ascertained that sexual harassment may not occur at the definite workplace where the
aggrieved party and the offender usually work; it may also include places where the parties
may have visit on account of work. Section 28B(6) of the Sex Discrimination Act states that a
sexual harassment in the workplace, done by a work participant to another work participant,
either or both working in the same place shall be considered as unlawful.
‘Sexual harassment’ as held under the Sex Discrimination Act refers to the unwelcome
‘sexual advances or request for sexual favours, or unwelcomed conduct of sexual nature’

2WORKPLACE LAW
under circumstances where any reasonable person would comprehend and anticipate that it
would be offensive, humiliating or intimidating for the person so harassed.
In a case of sexual discrimination at workplace where the employer has been
intimated about such incident by an employee who has been harassed and yet the employer
does not take action of such issue, shall be held liable as a part of such harassment, as held in
the case of Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82. In this
case the court revised the damages of $18000 which was ordered on account of vicarious
liability of the employer for failing to address the issue of sexual harassment. The court had
held that it was too low to be an award for a serious offence like sexual harassment and
revised it to $130000.
Therefore, it would be essential to prove that the offender have committed certain acts
or conducts that amounts to sexual harassment upon the aggrieved party, either or both of
whom works at the workplace relating to which the incident has occurred.
Vicarious liability of the employer refers to the circumstance where the employer
failed to address a situation involving misconduct of his employees, affecting another
employee or someone else, which was committed at the workplace. In a workplace the
employer shall be held responsible for the act or omission of his employees, provided it is
being proved that such act or omission had taken place at the workplace, in the course of
employment. However, incidents that does not concern the workplace; something that
occurred in the personal capacity of the employees, would not make the employer liable
under the principle of vicarious liability.
Application
In the given case, Jemma Ewin working with the Living and Leisure Australia
Limited (LLA), alleged that Mr. Claudio Vergara, employed by a labour hire firm working
for LLA sexually harassed her by way of sexually explicit comments and certain physical