Sexual harassment

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 24 March 2023

Part 6 of the Equal Opportunity Act deals with sexual harassment.

Section 92(1) of the Equal Opportunity Act defines sexual harassment as follows:

In essence, the Equal Opportunity Act prohibits a person from engaging in conduct of a sexual nature that a person would anticipate could be expected to offend, humiliate or intimidate a person.

Where sexual harassment is prohibited

Part 6 of the Equal Opportunity Act prohibits sexual harassment in the following areas:

• by employers and employees (section 93 and section 27)
• in common workplaces (section 94)(1)
• by partners in firms (section 95)(2)
• in industrial organisations (section 96)(3)
• by members of qualifying bodies (section 97)(4)
• in educational institutions (section 98)(5)
• in the provision of goods and services (section 99 and section 125)(6)
• in the provision of accommodation (section 100)(7)
• in clubs (section 101)(8)
• in local government (section 102).

Protection of volunteers in 'employment'

The Equal Opportunity Act defines the employment relationship to include a person who performs work for another on a voluntary or unpaid basis for the purposes of the prohibitions against sexual harassment in Part 6. Volunteers, therefore, are protected against sexual harassment when they provide their services. They do not otherwise derive the same protection available to employees under the Equal Opportunity Act.

The reasons for limiting the protection afforded to volunteers in this way were not explicitly stated during the consultation process for the Equal Opportunity Act. The Second Reading Speech clarified the extension of the Equal Opportunity Act to protect unpaid workers and volunteers was to recognise that, 'a person can experience discrimination or sexual harassment in the workplace even if they are not paid a wage'.(9)

It was recognised, however, that this change would present challenges to some organisations. In particular, organisations in the community and not-for-profit sector with limited resources that will need to understand and prepare for the change may be impacted. This is the most likely reason that only acts of sexual harassment are currently within the scope of this additional protection.

The Second Reading Speech recognised unpaid workers and volunteers can be subjected to all types of discrimination, and not just to sexual harassment. This may indicate the definition will be extended in the future.

Volunteers may, however, be protected from discrimination in the context of the provision of goods and services, as discussed in the section on Volunteers who receive and provide services.

The practical implications of extending the definition of employee as it is used in Part 6 are:

• An employer must not sexually harass a person who works for them as an unpaid worker or volunteer, or a person seeking to work with them as an unpaid worker or volunteer. In addition, an unpaid worker or volunteer must not sexually harass their employer, other employees or people seeking to work with their employer (whether as unpaid workers, volunteers or otherwise).
• A person must not sexually harass another person (including an unpaid worker or volunteer) at a place that is a workplace of both of them.
• A member of an industrial organisation must not sexually harass a person who works for that organisation as an unpaid worker or volunteer. An unpaid worker or volunteer also must not sexually harass a person seeking to become a member of an industrial organisation or a member of that organisation.
• A member of a qualifying body must not sexually harass a person who works for that body as an unpaid worker or volunteer. An unpaid worker or volunteer also must not sexually harass a person seeking action in connection with an occupational qualification or a member of that qualifying body.
• A person who works as an unpaid worker or volunteer for an educational institution must not sexually harass a person seeking admission to that institution as a student, or a student of that institution. A student also must not sexually harass a person who works as an unpaid worker or volunteer for that institution.
• A member of a club, including a member of the management committee or other governing body of the club, must not sexually harass a person who works as an unpaid worker or volunteer for the club.

'Out of work' conduct and common workplaces

Sexual harassment in employment can occur outside a standard workplace environment and normal working hours. For example, it can occur at social functions sponsored and paid for by the employer, at after-parties to such events (regardless of their location), and in hotels paid for by the employer. Sexual harassment can also occur at work premises outside working hours or while employees are not performing their duties. The 'workplace' is not confined to the physical location used by the employees. It also extends to common areas such as lifts, entrances, reception areas, corridors, kitchens and toilets of the premises. See Ewin v Vergara [No 3] [2013] FCA 1311 [43].

The Equal Opportunity Act also states that a person, including an employer, must not sexually harass a person in a common workplace. A common workplace is any place where a person attends for the purpose of carrying out functions in relation to their employment, occupation, business, trade or profession.

Under similar, but not identical, provisions in the Sex Discrimination Act 1984 (Cth), a contractor was found to have sexually harassed an employee who worked in the same office as him. He made sexual advances and comments to her over a number of days and at various locations on site and off site, culminating in an unwanted sexual incident. These included at her desk during the day and after hours, after work at various bars, at a work meeting off site, at a work function after hours, and after the function in a corridor of the common workplace. See Vergara v Ewin [2014] FCAFC 100.

Whether a person's private or out-of-work conduct bears a relevant connection to the workplace is not clear. The answer will turn on the particular facts in each case. Cases that have addressed this issue can provide guidance. Section 93 of the Equal Opportunity Act does not require a connection with the workplace beyond an employment (or potential employment) relationship between the parties. Only when an employer's vicarious liability is being considered under section 109 of the Equal Opportunity Act is there a requirement to consider if an act was 'in the course of employment' and, therefore, whether there was a connection to the workplace.

In South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130, for example, sexual harassment occurred at staff accommodation provided by the respondent as part of its hotel complex, even though the harassment occurred while the complainant and co-worker were off duty. The respondent argued this case should be distinguished from other cases where incidents of sexual harassment had occurred, for example, in a hotel room paid for by the employer after a work event, because in this case, the employees involved were both living on the premises. The court did not consider that this removed the conduct from the scope of 'employment'. A key consideration was that only employees were allowed on site. The respondent was held to be vicariously liable for the harassment because the employees' rooms were close to each other and accessible. This created the opportunity for the conduct to occur 'within the course of employment' at any time. The Court found the respondent had taken insufficient steps to prevent a 'foreseeable' possibility of harassment.

In A v K Ltd & Z [2008] VCAT 261 A alleged he was sexually harassed by co-worker Z in a number of different incidents. The first incident was alleged to have occurred at a private party organised by a colleague. While there were employees from K Ltd at the party, it was not organised or authorised by the company. A number of the people attending the party were not employees of the company. The party was also held on a Saturday, which was not a work day.

The second allegation related to events over a Friday–Saturday period. Both A and Z were required to attend a work-related function. The employer paid for Z's accommodation for the Friday evening as he had come down from Sydney. After the function a number of employees and clients and guests of the company went to a bar. The company authorised and paid for the supply of alcohol at the bar.

A alleged Z subjected him to an act of physical intimacy that he did not or could not consent to because of his alcohol affected state. Those circumstances included:

• A felt intimidated in Z's presence and reluctant to say or do anything that might anger or upset him by virtue of Z's position in the company
• A was visibly affected by alcohol
• the physical intimacy followed the first incident which had already disturbed A and caused him to be apprehensive of Z.

A alleged further that Z, by his actions, created an opportunity for A to be alone with him, and that at no time during the course of the evening did A knowingly tell Z or intimate to him that he would participate in any sexual activity. There was a significant dispute between A and Z as to what happened that evening.

Z denied anything of a sexual nature occurred at any time during either of the alleged incidents.

This case arose in the context of a strike out application. In that context, VCAT held the first incident was misconceived and should be struck out on the basis there was insufficient connection with the employment to properly found a claim against the employer. The incident clearly occurred in a situation that was a private function where the employees were not acting as employees. VCAT was not satisfied that in the second incident there was an insufficient link to the employment relationship such that the claim was bound to fail. On this basis, VCAT refused to strike out the second incident.

In Lee v Smith [2007] FMCA 59 (Lee v Smith)the Australian Defence Force was held vicariously liable for unlawful sexual harassment and victimisation in breach of the Sex Discrimination Act 1984 (Cth). That unlawful conduct included a rape, which occurred following after-work drinks at the home of one of Ms Lee's colleagues. Central to the Court's finding that the Australian Defence Force was vicariously liable was its conclusion that the rape 'arose out of a work situation' and 'was the culmination of a series of sexual harassments that took place in the workplace' (Lee v Smith [203]).

In Anthony Tichy v Department of Justice – Corrections Victoria [2005] AIRC 136 and A Tichy v Department of Justice [2005] AIRC 592 an incident of serious sexual harassment by a colleague was held not to have been in the course of employment for the purposes of allegations of misconduct. The incident took place while the employees were away for work purposes. The significant distinction was that the event had not been authorised or sanctioned by management. It had been organised by the employees at their own initiative. The employees were not required to be in such close proximity to each other because of work. This was the critical factor in finding that the incident was outside the scope of the workplace. This case related to misconduct, not an allegation of sexual harassment in breach of section 93 of the Equal Opportunity Act. It is possible sexual harassment may have been found in the same circumstances if it was heard under the Equal Opportunity Act.

The scope of employment has been expanded over recent years as electronic communication and social media have infiltrated the workplace. The courts have clarified behaviour engaged in via social media sites and electronic communication can still have a sufficient nexus to the workplace to bring it within the scope of employment. See, for example, Cooper v Western Area Local Health Network [2012] NSWADT 39.

In Kerkofs v Abdallah [2019] VCAT 259 there were two separate categories of sexual harassment identified by Judge Harbison: general harassment in the workplace and a single sexual assault that occurred at Ms Kerkofs's home. The respondents submitted that the assault at the private residence fell outside the scope of employment. However, this argument was rejected on the basis that the Ms Kerkofs's supervisor had instructed Mr Abdallah to drive Ms Kerkofs's home after she fell sick at work.

These cases show the case law on sexual harassment can be circumstantial. The relationship between those involved and the context of the incident are as important as where the incident took place.

Criteria for sexual harassment

To constitute sexual harassment, the conduct complained of must satisfy a number of criteria. First, the conduct complained of must be of a sexual nature. Second, the conduct must be unwelcome to the recipient. This is a particularly important element as conduct based on mutual attraction between consenting adults is clearly outside the scope of the sexual harassment provisions and would not be unlawful.

Under section 92 of the Equal Opportunity Act the conduct complained of must also occur in circumstances in which a reasonable person with knowledge of all the surrounding circumstances would have anticipated the subject of the conduct would be 'offended, humiliated or intimidated'.

As with other provisions under the Equal Opportunity Act, section 10 states that intention or motive is not required to prove a claim of sexual harassment.

Conduct of a sexual nature

The conduct complained of must be of a sexual nature to constitute sexual harassment. This includes a sexual advance or request for sexual favours or other conduct of a sexual nature. A request for sexual favours is relatively self explanatory. The case law contains many cases where an employer, for example, propositions an employee and requests sex in circumstances that have been held to constitute sexual harassment. See, for example, Delaney v Pasunica Pty Ltd [2001] VCAT 1870.

In Campagnolo v State of Victoria – Department of Environment & Sustainability [2008] VCAT 1996 Justice Harbison confirmed an 'unwelcome sexual advance … connotes some sexual importuning or soliciting' [23].

In Sammut v Distinctive Options Limited [2010] VCAT 1735 Mr Sammut pursued a claim of sexual harassment against his employer on the basis that Ms Joy, a fellow employee, had sexually harassed him. One allegation was that Ms Joy had told Mr Sammut in graphic detail about an incident in which she had sex in a car. The Victorian Civil and Administrative Tribunal (VCAT) held the story was, 'clearly, not in the nature of a sexual advance or a request for sexual favours'.

However, the fact that it was an explicit statement about a sexual experience meant that it was a 'comment of a sexual nature' and was, therefore, sufficient to fall within the definition of 'conduct of a sexual nature' [54].

Mr Sammut also alleged Ms Joy had subjected him to 'conduct of a sexual nature' by hugging him. The respondent tried unsuccessfully to argue this was not conduct of a sexual nature given that the workplace was a 'huggy' one, in which staff members often gave others 'supportive hugs'. VCAT did not accept that the workplace was 'universally huggy'. It also found the hugs were 'intimate' and were 'more than a comforting or supportive pat on the shoulder'.

The respondent also submitted 'that no reasonable person would view the alleged conduct as being offensive, and that the sexual harassment legislation is not designed to address such trivialities nor to sterilise the workplace from harmless displays of care and respect between colleagues' [69]. VCAT rejected those submissions:

In some cases, the context may be crucial in determining whether the conduct is found to be of a 'sexual nature' and, therefore, constitute sexual harassment. In State of Victoria v McKenna [1999] VSC 310, for example, three alleged acts of sexual harassment were complained of by Ms McKenna, a former police officer. Two of the incidents in the series were clearly conduct of a sexual nature. They involved Mansfield, another police officer, first, pulling Ms McKenna onto his lap and, second, saying to her 'how about a head job?' The third incident involved Ms McKenna being grabbed and pulled towards a holding cell, followed by an attempt to lock her in the cell. The Victorian Supreme Court rejected the argument that the third incident should be classed as assault, rather than sexual conduct. The argument was rejected on the basis that the incident occurred as part of a series, the other incidents being sexual. The Court found this act had the necessary sexual element to render it a sexual assault and, therefore, to amount to sexual harassment. If this third incident had occurred in isolation, it may not have had the necessary sexual element [219]–[223].

In a contrasting case, AGO v Monash University [2016] VCAT 886, a psychologist asked a client who had been the subject of a stalking claim and intervention orders about his relationships and behaviour towards women. This was not found to be 'conduct of a sexual nature' [38] [45].

Where the conduct complained of falls short of constituting a request for sexual favours or a sexual advance, it may still constitute sexual harassment if it constitutes conduct of a sexual nature. Section 92(2) provides an inclusive, rather than exhaustive, list of what constitutes conduct of a sexual nature. Other conduct not expressly referred to in section 92(2) may fall within the ordinary meaning of conduct of a sexual nature.

In Te Papa v Woolworths Ltd trading as Safeway [2006] VCAT 1222 Justice S Davis commented on the predecessor to section 92(2), which was in the same terms:

In Kumari v Bervar Pty Ltd t/as Della Rosa Fresh Foods [2019] VCAT 1654, VCAT found that it was ‘unwelcome conduct of a sexual nature’ for the applicant’s co-worker to stare at her breasts rather than her face when he talked to her [38]:

Whether conduct or a statement is 'sexual' may depend on the circumstances including where and when and how the conduct occurred, and the understanding of the participants at the time.

In Johanson v Michael Blackledge Meats [2001] FMCA 6 a customer had been sold a bone at a butcher's shop. The bone had been deliberately made into the shape of a penis and disguised among the bones for sale by an employee. Although the sale of the bone to that particular customer was unintentional, the transaction was sufficient to constitute sexual harassment. The employee had engaged in conduct that exposed the customer to the risk of obtaining an object from the shop that caused her serious offence [90].

The test of whether conduct is of a sexual nature is an objective one and the motivation or understanding of the perpetrator is irrelevant. See Frith v The Exchange Hotel [2005] FMCA 402.

A single incident or a series of incidents can constitute sexual harassment. In Hall v A. & A. Sheiban Pty Ltd [1989] FCA 72 Justice Lockhart said the definition of sexual harassment 'clearly is capable of including a single action and provides no warrant for necessarily importing a continuous or repeated course of conduct' [40]. In the same case, Justice French also held sexual harassment need not involve repetition. He stated 'circumstances, including the nature and relationship of the parties may stamp conduct as unwelcome the first and only time it occurs' [53]. See also Sammut v Distinctive Options Limited [2010] VCAT 1735 [51] and Equal Opportunity Act 2010 (Vic) s 92(2), which is in substantially the same terms as its predecessor in the 1995 Act.

Further illustrating this point, in Tan v Xenos [2008] VCAT 1273 damages of $100,000 were awarded in relation to a single incident of sexual harassment. This act involved serious unwelcome sexual conduct by Mr Xenos, a neurosurgeon, towards his trainee. The incident was considered to have been exacerbated by the fact that Mr Xenos took advantage of his position of seniority and control.

In Kerkofs v Abdallah [2019] VCAT 259 Judge Harbison separated the sexual harassment into two categories: a general campaign of harassment in the workplace, as well as a single serious assault that occurred at Ms Kerkofs' home after she fell ill at work. In that case, it was clear that, if any of the conduct described by Ms Kerkofs had occurred, it would amount to sexual harassment under the Equal Opportunity Act. The case turned on which of the witness accounts were credible. Judge Harbison ultimately found in favour of Ms Kerkof and awarded $150,000 in damages. The substantial award took into account the fact that the respondent had been in a position of authority and his 'extremely predatory behaviour' in taking advantage of the applicant's illness [261]. The award also reflected Ms Kerkofs' ongoing psychiatric injury that was attributed to the harassment.

Section 92(2)(a) refers to conduct that subjects a person to an act of physical intimacy. The extent to which acts of physical intimacy constitute sexual harassment was considered in Pana Andropoulos v Peppers Delgany Portsea [1999] VCAT 645. The complainant made a complaint of sexual harassment in the provision of goods and services and accommodation. The complainant had a massage at a hotel where she was staying. She alleged during the massage, Mr McKinlay, the masseur, unhooked her bra, began massaging her back, and 'without warning' pulled the towel to below her buttocks, pulled down her underwear and massaged her buttocks. The complainant made no comment to Mr McKinlay until after the massage had finished.

VCAT considered whether this constituted conduct of a sexual nature for the purposes of the 1995 Act. VCAT recognised the conduct occurred in circumstances 'where the complainant had subjected herself voluntarily to treatment that was to include the massage of muscles and tissue in various parts of her body, including her back' [5]. This was relevant to VCAT's consideration of whether there had been an act of 'sexual physical intimacy', which would be necessary for the complaint of sexual harassment to be upheld. In such circumstances, there can still be sexual harassment if:

In this case, the complainant's main concern was that Mr McKinlay had 'exposed' her buttocks, rather than the fact that he had massaged them. There was nothing in the complainant's evidence to suggest Mr McKinlay had changed the treatment to make it conduct that could constitute 'sexual physical intimacy'. VCAT found there had been no sexual harassment in this instance.

The Peppers Delgany Portsea case shows that where there has been physical contact, the context in which that contact occurred will be important in determining whether it meets the test of 'sexual harassment'. Similarly, in Burgiss v Clisby Pty Ltd [2004] VCAT 1817 there was agreement that Mr Grech, an employee of the respondent, hit the complainant on the 'backside with a newspaper'. The context in which this happened was disputed. Deputy President Davis said:

Section 92(1)(b) requires unwelcome sexual conduct to be ‘in relation’ to the applicant. In Bye v Barkers Fresh Produce [2019] VCAT 632, VCAT found that a conversation between the applicant’s co-workers – including offensive comments about gay men – was not overheard by the applicant and was not ‘in relation’ to him [161]-[164]. VCAT also noted that under section 92(2)(b), for the conduct to constitute sexual harassment, the comments would have to have been made about the applicant and in his presence [161]. This is because section 92(2)(b) provides that conduct of a sexual nature includes any sexual comment ‘to a person or about a person’ in their presence.

Unwelcome conduct

As noted above, to constitute sexual harassment for the purposes of the Equal Opportunity Act, conduct of a sexual nature must also be 'unwelcome'. In GLS v PLP [2013] VCAT 221 VCAT President Justice Garde adopted the test in Aldridge v Booth [1988] FCA 170 (cited in GLS v PLP [2013] VCAT 221 [33]). In that case Justice Spender held for conduct to be 'unwelcome' meant it was not solicited or invited by the employee, and that the employee regarded the conduct as undesirable or offensive. Justice Garde further held the question of whether behaviour is unwelcome is subjective, based on the state of mind of the complainant.(11)

This means that the conduct must not only be uninvited or unsolicited, it must also be unwelcome. The notion that the sexual conduct is unwelcome is at the core of the concept of what constitutes sexual harassment.

In the decision of Styles v Murray Meats Pty Ltd [2005] VCAT 2142 Deputy President McKenzie also held whether the conduct is unwelcome is a subjective test:

This does not mean, however, the respondent has to know the conduct is unwelcome. As noted by Deputy President McKenzie in Kaldawi v Smiley [2002] VCAT 1754:

A similar issue arose in Howard v Geradin Pty Ltd T/A Harvard Securities [2004] VCAT 1518. Deputy President Davis said:

'Ambivalence' towards a person's conduct is not sufficient to defeat a claim of sexual harassment. In Aldridge v Booth [1986] HREOCA 1the then federal Human Rights and Equal Opportunity Commission found the complainant had tolerated the behaviour due to her young age (17) and lack of sophistication. The acts complained of were significant, including several acts of sexual intercourse. The complainant was afraid her employment would be terminated if she had made it clear the conduct was unwelcome. That the acts were 'largely unwelcome' was sufficient to meet the requirements of the Sex Discrimination Act 1984 (Cth), even though the complainant had endured the conduct and not openly objected.

It may not always be apparent that the sexual conduct was unwelcome. In Hardy v Kelly (1991) EOC 92–369(Kelly) allegations of sexual harassment against Mr Kelly were made by his secretary, Ms Hardy. VCAT found Ms Hardy and Mr Kelly had a 'close friendship' at the time when the relevant incidents occurred. Ms Hardy had also actively participated in out-of-hours conversations with Mr Kelly, including allowing him to visit her at home on a number of occasions. On that basis, VCAT found the conduct was not unwelcome, and so could not constitute sexual harassment. Ms Hardy's evidence that when Mr Kelly attempted to hug her on one occasion, she had 'repelled him' and told him to go home, did not assist her claim when considered in the context of their relationship at that time.

The emphasis placed on the close friendship between the parties in determining that there had been no sexual harassment in Kelly, contrasts with the decision of the Federal Court in Leslie v Graham [2002] FCA 32. The complainant was employed by Roger Graham and Associates, a family business, and had become a personal friend of the family. Mr L Graham, who ran Roger Graham and Associates with his father, and the complainant went to a work-related weekend conference, where they shared an apartment. The complainant alleged she had woken in the night to find Mr L Graham on top of her and fled the apartment. The Court upheld the complainant's allegation of sexual harassment. It found the complainant did not fear that Mr L Graham would rape her, but did not consider it a mitigating factor that a friendship existed between Mr L Graham and the complainant. The nature of the conduct alleged may also have been relevant factors in the above cases.

The finding in Kelly also contrasts with the more recent decision in GLS v PLP [2013] VCAT 221. In this case, Ms GLS was a mature-aged graduate legal student undertaking professional legal placement with Mr PLP and his firm. The complainant Ms GLS and respondent Mr PLP had been close friends before Mr PLP agreed she could undertake a professional legal service placement at his firm. She complained Mr PLP sexually harassed her on a daily basis throughout her placement. The harassment included repeated requests for sex, inappropriate touching, viewing pornography in the workplace and inappropriate comments.

VCAT upheld 11 out of 14 instances of sexual harassment alleged by Ms GLS, despite finding there was a close friendship of admiration and affection between Ms GLS and Mr PLP. Ms GLS and Mr PLP socialised together outside work and with each other's families, visited each other's homes, and there was evidence of conversations between the two containing 'sexual innuendo or banter, teasing and provocation that passed between them virtually on a daily basis' [151]–[152].

Justice Garde considered whether the context of the parties' relationship affected whether Mr PLP's conduct was sexual harassment, and whether his sexual advances and requests for sexual intercourse were welcome. Justice Garde held:

The close and affectionate relationship between Ms GLS and Mr PLP did not preclude Mr PLP's conduct amounting to sexual harassment.

Conduct anticipated to offend, humiliate or intimidate

To constitute sexual harassment, section 92(1) of the Equal Opportunity Act states it is necessary that a reasonable person with knowledge of the circumstances would have anticipated the subject of the conduct would be offended, humiliated or intimidated.

This requires an objective assessment of the evidence, namely 'the perspective of a reasonable person in the role of a hypothetical observer'. For examples see GLS v PLP [2013] VCAT 221 [30]–[32] relying on Kraus v Menzie [2012] FCAFC 144 [7] and Leslie v Graham [2002] FCA 32 [70] (Branson J). Also see Poniatowska v Hickinbotham [2009] FCA 680 [289].

As VCAT noted in Styles v Murray Meats Pty Ltd [2005] VCAT 914:

Similarly, in Mohican v Chandler McLeod Ltd T/A Forstaff Australia [2009] VCAT 1529, VCAT noted:

Other considerations

Failing to 'flee' or strongly reject harassment

Failing to flee or strongly reject harassing behaviour will not affect a complaint of sexual harassment, in particular whether the conduct was welcome or not. VCAT made clear it is not appropriate to criticise a complainant for the way they handle the sexual harassment in GLS v PLP [2013] VCAT 221. It is enough that the respondent's conduct meets the test for sexual harassment under the Equal Opportunity Act [228].

In that case, Ms GLS rejected Mr PLP's advances, but Mr PLP's counsel argued her body language contradicted her words [220], [222]. Mr PLP's counsel criticised Ms GLS for not escaping from Mr PLP's embraces, and not acting more strongly or at an earlier time to reject his advances. Defence counsel argued Ms GLS could have spoken her mind more directly or forcibly removed herself from his grasp and presence. Furthermore, Ms GLS "could have declined to engage in a conversation with him that involved so many sexual requests and references" [226]–[227].

Justice Garde was not persuaded by this criticism. Justice Garde held such comments were inappropriate considering the obligation is on the employer to refrain from sexually harassing employees and to eliminate sexual harassment as far as possible:

In Collins v Smith [2015] VCAT 1029 VCAT affirmed Justice Garde's observation, and noted 'caution must be exercised when examining the conduct of the [complainant] for the purpose of reflecting upon whether she could have handled the situation better or differently' [378].

Similarly, in Delaney v Pasunica Pty Ltd [2001] VCAT 1870 it was alleged Mr Daley approached Ms Delaney in the storeroom of the shop where they worked, grabbed her breasts and bottom, kissed her neck and touched her all over, among other things. The fact that Ms Delaney did not 'flee' from the workplace in response to this advance 'because she was frightened of losing her job and did not know what to do' did not affect her claim of sexual harassment being upheld.

Sexual harassment and out-of-work conduct

A further element to consider in respect of sexual harassment is how far the scope of 'employment' extends. This is also relevant to the issue of vicarious liability discussed in the chapter on Vicarious Liability.

Whether a person's private or out-of-work conduct bears a relevant connection to the workplace is not clear. The answer will turn on the particular facts in each case. Cases that have addressed this issue can provide guidance. Section 93 of the Equal Opportunity Act does not require a connection with the workplace beyond an employment (or potential employment) relationship between the parties. Only when an employer's vicarious liability is being considered under section 109 of the Equal Opportunity Act is there a requirement to consider if an act was 'in the course of employment' and, therefore, whether there was a connection to the workplace.

In South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130, for example, sexual harassment occurred at staff accommodation provided by the respondent as part of its hotel complex, even though the harassment occurred while the complainant and co-worker were off duty. The respondent argued this case should be distinguished from other cases where incidents of sexual harassment had occurred, for example, in a hotel room paid for by the employer after a work event, because in this case, the employees involved were both living on the premises. The court did not consider that this removed the conduct from the scope of 'employment'. A key consideration was that only employees were allowed on site. The respondent was held to be vicariously liable for the harassment because the employees' rooms were close to each other and accessible. This created the opportunity for the conduct to occur 'within the course of employment' at any time. The Court found the respondent had taken insufficient steps to prevent a 'foreseeable' possibility of harassment.

In A v K Ltd & Z [2008] VCAT 261 A alleged he was sexually harassed by co-worker Z in a number of different incidents. The first incident was alleged to have occurred at a private party organised by a colleague. While there were employees from K Ltd at the party, it was not organised or authorised by the company. A number of the people attending the party were not employees of the company. The party was also held on a Saturday, which was not a work day.

The second allegation related to events over a Friday–Saturday period. Both A and Z were required to attend a work-related function. The employer paid for Z's accommodation for the Friday evening as he had come down from Sydney. After the function a number of employees and clients and guests of the company went to a bar. The company authorised and paid for the supply of alcohol at the bar.

A alleged Z subjected him to an act of physical intimacy that he did not or could not consent to because of his alcohol affected state. Those circumstances included:

• A felt intimidated in Z's presence and reluctant to say or do anything that might anger or upset him by virtue of Z's position in the company
• A was visibly affected by alcohol
• the physical intimacy followed the first incident which had already disturbed A and caused him to be apprehensive of Z.

A alleged further that Z, by his actions, created an opportunity for A to be alone with him, and that at no time during the course of the evening did A knowingly tell Z or intimate to him that he would participate in any sexual activity. There was a significant dispute between A and Z as to what happened that evening.

Z denied anything of a sexual nature occurred at any time during either of the alleged incidents.

This case arose in the context of a strike out application. In that context, VCAT held the first incident was misconceived and should be struck out on the basis there was insufficient connection with the employment to properly found a claim against the employer. The incident clearly occurred in a situation that was a private function where the employees were not acting as employees. VCAT was not satisfied that in the second incident there was an insufficient link to the employment relationship such that the claim was bound to fail. On this basis, VCAT refused to strike out the second incident.

In Lee v Smith [2007] FMCA 59 (Lee v Smith)the Australian Defence Force was held vicariously liable for unlawful sexual harassment and victimisation in breach of the Sex Discrimination Act 1984 (Cth). That unlawful conduct included a rape, which occurred following after-work drinks at the home of one of Ms Lee's colleagues. Central to the Court's finding that the Australian Defence Force was vicariously liable was its conclusion that the rape 'arose out of a work situation' and 'was the culmination of a series of sexual harassments that took place in the workplace' (Lee v Smith [203]).

In Anthony Tichy v Department of Justice – Corrections Victoria [2005] AIRC 136 and A Tichy v Department of Justice [2005] AIRC 592 an incident of serious sexual harassment by a colleague was held not to have been in the course of employment for the purposes of allegations of misconduct. The incident took place while the employees were away for work purposes. The significant distinction was that the event had not been authorised or sanctioned by management. It had been organised by the employees at their own initiative. The employees were not required to be in such close proximity to each other because of work. This was the critical factor in finding that the incident was outside the scope of the workplace. This case related to misconduct, not an allegation of sexual harassment in breach of section 93 of the Equal Opportunity Act. It is possible sexual harassment may have been found in the same circumstances if it was heard under the Equal Opportunity Act.

The scope of employment has been expanded over recent years as electronic communication and social media have infiltrated the workplace. The courts have clarified behaviour engaged in via social media sites and electronic communication can still have a sufficient nexus to the workplace to bring it within the scope of employment. See, for example, Cooper v Western Area Local Health Network [2012] NSWADT 39.

In Kerkofs v Abdallah [2019] VCAT 259 there were two separate categories of sexual harassment identified by Judge Harbison: general harassment in the workplace and a single sexual assault that occurred at Ms Kerkofs's home. The respondents submitted that the assault at the private residence fell outside the scope of employment. However, this argument was rejected on the basis that the Ms Kerkofs's supervisor had instructed Mr Abdallah to drive Ms Kerkofs's home after she fell sick at work.

These cases show the case law on sexual harassment can be circumstantial. The relationship between those involved and the context of the incident are as important as where the incident took place.

Sexual harassment and sex or gender identity

Sexual harassment is not limited to conduct by a male towards a female. Sexual harassment can occur in respect of conduct involving people of any sex or gender identity. In Thomas v Alexiou [2008] VCAT 2264 VCAT found Mr Alexiou, a director of a small business, sexually harassed Mr Thomas, an apprentice, over a three-and-a-half-year period. The conduct included repeatedly propositioning him to share a shower, making unwelcome sexual advances by touching his genitals and, in a number of incidents, physically restraining him to do so. In Sammut v Distinctive Options Limited [2010] VCAT 1735 a female colleague sexually harassed Mr Sammut by repeatedly putting both arms around him to hug him despite him requesting her not to do so on more than one occasion.

Notes

1 : Section 94(3) defines 'workplace' for the purposes of a common workplace as 'a place where a person attends for the purpose of carrying out any functions in relation to their employment, occupation, business or trade'. See, for example, Ionescu v John Blair Motor Sales [2011] VCAT 706.

2 : Section 4 of this Act confirms that partnership, for the purposes of the Act, has the same meaning as in Partnership Act 1958 (Vic), namely 'the relation which subsists between persons carrying on a business in common with a view of profit'.

3 : Section 4 also defines 'industrial organisation', including in relation to acts of sexual harassment.

4 : Section 4 defines 'qualifying body' as 'a person or body that is empowered to confer, renew or extend an occupational qualification'.

5 : Turner v Department of Education and Training [2007] VCAT 873 confirmed 'educational institution' includes 'a school at which education is provided'.

6 : By way of example, massage therapy was held to be the provision of a service in the context of which it is possible for an individual to be sexually harassed in Andropoulos Pana v Peppers Delgany Portsea [1999] VCAT 645. (Note that in this case there was no finding of sexual harassment for other reasons).

7 : In Ross v Loock [2000] HREOCA 6 a landlord, his female tenant, and other tenants were socialising together. The landlord asked the female tenant to stay behind after others had left. He then made sexual advances on her, and soon after, terminated the tenancy. The Human Rights and Equal Opportunities Commission found the landlord, as the accommodation provider, had sexually harassed the female tenant in the course of providing her accommodation.

8 : See section 4 for further discussion of the definition of 'clubs' for the purposes of the Equal Opportunity Act. Also see Discrimination in clubs in this resource.

9 : Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010, 115–121 (Rob Hulls, Attorney-General).

10 : Section 85 of the Equal Opportunity Act 1995 is replicated in section 92 of the Equal Opportunity Act 2010; Section 86(2)(a) of the Equal Opportunity Act 1995 is replicated in section 93(2)(a) of the Equal Opportunity Act 2010.

11 : GLS v PLP [2013] VCAT 221 [30], [32] relying on Kraus v Menzie [2012] FCAFC 144. The Full Federal Court was considering the construction of section 28A of the Sex Discrimination Act 1984 (Cth) which is in a very similar form to section 85(1) of the 1995 Act, which was under consideration by Justice Garde in GLS v PLP [2013] VCAT 221.

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