Case Analysis: Workplace Law - Ewin v Vergara & ASIC v Lindberg Cases

This case study analyzes two significant legal cases: Ewin v Vergara and ASIC v Lindberg. The Ewin v Vergara case examines workplace sexual harassment, focusing on incidents occurring both within and outside the office, and the employer's vicarious liability for failing to address the harassment. The analysis covers the definition of 'workplace' in this context and the implications of the employer's inaction. The ASIC v Lindberg case focuses on corporate law, specifically the duties of care and diligence of company directors, and the failure of the managing director to fulfill his fiduciary responsibilities. The analysis highlights the director's failure to actively participate in investigations, assess critical information, and communicate with the board regarding debt recovery, including potential violations of UN resolutions. The summary of both cases provides a comprehensive overview of the legal issues, facts, and outcomes, offering valuable insights into workplace law and corporate governance.

Workplace Law
Ewin v Vergara (No. 3) [2013] FCA
1311

Issue
 To determine whether Mr
Claudio Vergara sexually
harassed Ms Jemma Ewin.
 To be determined whether
the places where Ms Ewin,
if harassed, falls under the
purview of ‘workplace’.
 To be determined whether
Ms Ewin could hold her
employer vicariously liable
for the sexual harassment.

Rule
 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.
 A ‘workplace’ is defined as the place
where workplace participants carry out
functions of their work or related to work

Rule
 ‘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’
under circumstances where any reasonable person would
comprehend and anticipate that it would be offensive,
humiliating or intimidating for the person so harassed.
 ‘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 (Richardson v Oracle Corporation Australia
Pty Ltd [2014] FCAFC 82).

Application
 First incident: occurred at
office, Mr Vergara switched off
the office lights, tried touching
Ms Ewin.
 Second incident : occurred at
Waterside hotel, Mr Vergara
gave sexual propositions to Ms
Ewin and made several
sexually explicit comments.
 Third incident : occurred
outside Waterside hotel, Mr.
Vergara a tried to kiss Ms Ewin.

Application
 Fourth incident : occurred at the
workplace two days after the previous
incidents, where Mr Vergara and Ms Ewin
indulged in sexual intercourse, both of
them being under the influence of alcohol.
 Although the second and third instance
occurred outside office, yet it falls under
the definition of workplace for they both
went there under professional capacity.

Application
 Sexual intercourse has been
interpreted as unwelcomed sexual
conduct on the part of Mr Vergara
for he should not have indulged
into sexual activity when Ms Ewin
was not in the state to give free
consent to such sexual activity.
 All of these incidents indicate that
Mr Vergara tried to exploit Ms Ewin
sexually.
 Ms Ewin’s employer Mr Newton did
not pay heed to her complaint
against Mr Vergara, thus giving
rise to Vicarious liability of the

Conclusion
 Therefore, it is proved that Mr Claudio
Vergara sexually harassed Ms Jemma
Ewin.
 The places where Ms Ewin was
harassed, falls under the purview of
‘workplace’, as per the definition laid
down in Ewin v Vergara (No. 3)
[2013] FCA 1311

Conclusion
 It is also proved that the employer
did not address Ms Ewin’s plea,
thereby liable to be hold vicariously
liable for the harassment as well.

References
 Ewin v Vergara (No. 3) [2013] FCA
1311
 Richardson v Oracle Corporation
Australia Pty Ltd [2014] FCAFC 82
 Sex Discrimination Act

Thank You