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Sexual harassment under the microscope – importance of reform

08 June 2022

#Workplace Relations & Safety

Published by:

Olivia Lawrence

Sexual harassment under the microscope – importance of reform

A recent NSW discrimination case has highlighted the importance of reform in the area of sex discrimination and sends a message to employers about the impact of the proposed amendments to federal sex discrimination laws.

The NSW discrimination case

In the recent decision of Vafa v Holdsworth; Vafa v University of Newcastle [2022] NSWCATAD 163, the NSW Civil and Administrative Tribunal (Tribunal) considered whether conduct occurring between an academic and his student amounted to sexual harassment.

Background

Professor Holdsworth was Ms Vafa’s supervisor during her PhD from August 2015 to November 2017. Ms Vafa alleged that Professor Holdsworth sexually harassed her during his supervision of her PhD. She alleged, among other things, that Professor Holdsworth hugged and kissed her on each cheek in greetings and farewells, and at other times touched her arms and shoulders, poked her in the arm and rubbed her back and buttocks.

Professor Holdsworth admitted that on occasion he did some of these things but denied rubbing Ms Vafa’s back or buttocks. He also denied Ms Vafa’s claim that she repeatedly told him that she felt uncomfortable with, and objected to, any aspect of his conduct. He claimed that Ms Vafa did not indicate that his behaviour was unwelcome or inappropriate before he ceased being her supervisor. An independent investigation undertaken by the University of Newcastle found the allegations were not proven.

In addition to the allegations of sexual harassment, Ms Vafa also alleged that Professor Holdsworth discriminated against her on the grounds of her sex and victimised her because of the allegations she made against him. She also alleged that he and another supervisor had provided inadequate support and supervision in her PhD. A claim was also brought against the University of Newcastle. Again, the independent investigation found these claims unproven.

This article does not consider these additional allegations, other than to note that the Tribunal dismissed them.

Judgment

Ms Vafa made a number of allegations of sexual harassment, including that during their weekly meetings, Professor Holdsworth would frequently touch her on the shoulders, back or hands, and on multiple occasions, hugged her tightly and kissed her on the cheek without permission. She alleged that on various occasions, he would enter her office from behind in a “sneaky manner” and alert her to his presence by putting his hand on her shoulder.

In relation to a research trip to Ireland, Ms Vafa alleged that he suggested, and was insistent upon, sharing accommodation with her for the duration of their trip. While in Ireland, he shared photos of her on Facebook without her permission, and shared videos and communicated with her over Facebook Messenger, which she did not consider appropriate. She also alleged that when a fellow student asked Professor Holdsworth if he and Ms Vafa shared accommodation while in Ireland, he said, “my wife would have killed me”, which amounted to sexual harassment.

In considering the evidence, the Tribunal rejected expert evidence from Professor Holdsworth that psychometric testing indicated that Ms Vafa was potentially dishonest. However, in assessing the credibility of Ms Vafa, the Tribunal accepted that some of the evidence she gave appeared to be embellished and inherently implausible.

In assessing each allegation, the Tribunal considered that the threshold of sexual harassment under the Anti-Discrimination Act 1977 (NSW) required a finding that:

  • the alleged conduct occurred
  • the conduct was unwelcome (which is a subjective test as to Ms Vafa’s state of mind at the time the conduct occurred)
  • a reasonable person having regard to all of the circumstances would have:
    • anticipated that Ms Vafa would be offended, humiliated or intimidated
    • considered the conduct was sexual in nature,
    • both of which are objective tests.

All the allegations of hugging, kissing on the cheek, and poking were found to have occurred and unwelcomed by Ms Vafa. However, the Tribunal did not consider the conduct, in the circumstances, to be objectively sexual in nature. As such, those claims were dismissed.

However, the allegation in relation to the statement by Professor Holdsworth that, “my wife would have killed me” if he and Ms Vafa had shared accommodation was found to be sexual harassment. The Tribunal found that Ms Vafa would have considered the conduct unwelcome, and a reasonable person would have anticipated Ms Vafa would be offended.

The Tribunal also found the comment was sexual in nature as “the implication of the comment ‘my wife would have killed me’ is clear: that had he shared accommodation with Ms Vafa, Professor Holdsworth’s wife would have suspected that he and Ms Vafa were sexually intimate”.

The case has been adjourned pending further orders regarding this finding of sexual harassment.

Impact of new section 28AA Sex Discrimination Act 1984 (Cth)

Although Ms Vafa brought the case under state laws, if a similar case was commenced in the federal jurisdiction, it may have resulted in a different outcome as a result of recent changes to sexual harassment laws introduced last year by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.

The Sex Discrimination 1984 (Cth) Act (SD Act) prohibits sexual harassment (section 28A) and sex-based discrimination (section 5). The new prohibition under section 28AA of the SD Act against harassment on the ground of sex is intended to capture harassing conduct that is seriously demeaning or engaged in by reason of someone’s sex, but not necessarily sexual. This widening definition may have resulted in a different outcome for Ms Vafa, including that the allegations that the Tribunal considered were not ‘sexual’ in nature may still be considered unlawful.

Further changes coming to federal sex discrimination laws

The new Federal Labor Government intends to implement all the outstanding recommendations made in the Australian Human Rights Commission’s (AHRC) report, ‘Respect@Work: A National Inquiry into Sexual Harassment in the Australian Workplace’ (Respect@Work Report).

Some of the recommendations that have not yet been introduced include:

1. amending the SD Act to expressly prohibit creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex

2. amending the SD Act to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex-based discrimination, sexual harassment and victimisation, as far as possible

3. giving the AHRC the function of assessing compliance with the positive duty. This may include providing the AHRC with the power to:

    • undertake assessments of the extent to which an organisation has complied with the duty, and issue compliance notices if it considers that an organisation has failed to comply
    • enter into agreements or enforceable undertakings with the organisation
    • apply to the court for an order requiring compliance with the duty.

4. amending the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to provide the AHRC with a broad inquiry function to inquire into systemic unlawful discrimination, including systemic sexual harassment

5. amending the AHRC Act to allow representative groups and unions to bring representative claims to court and inserting a costs protections provision consistent with section 570 of the Fair Work Act 2009 (Cth) (i.e. costs will not be awarded unless a claim is, among other things, vexatious)

6. reviewing the fair work system to ensure and clarify that sexual harassment is expressly prohibited.

How can we help?

We can provide advice on inappropriate workplace behaviour and assist your business in preparing for the proposed changes. If you have any questions or need assistance, please contact us below or get in touch with our team.

Authors: Michael Selinger & Olivia Lawrence

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, 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.

Published by:

Olivia Lawrence

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