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The recent Federal Court of Australia ruling in Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 has set the record for the highest general damages order in a sexual harassment case under the Sex Discrimination Act 1984 (Cth) (Act). The Applicant, Fiona Taylor, was awarded general damages in the amount of $140,000 for sexual harassment, in addition to other remedies and her legal costs.

The claim

Ms Taylor alleged that her employer, by the conduct of its sole director, Simon Grew, repeatedly sexually harassed her by:

• Providing her with over 19 gifts between September 2018 to March 2020;
• Slapping her on the bottom;
• Making various comments regarding her appearance, for example telling her she has “bedroom eyes” and was “100% perfect”; and
• Declaring his affection for her and continuing to press the matter when Ms Taylor informed him that she was not interested.

Ms Taylor alleged Mr Grew’s behaviour constituted unwelcome conduct of a sexual nature, which a reasonable person would anticipate would have offended, humiliated or intimated her, in contravention of the Act.

Although their initial working relationship was described as “pleasurable to both of them at least for a period of time”, this changed in January 2020 when Mr Grew declared that he had romantic feelings for Ms Taylor. He made comments to her such as he “had developed feelings for her which he could no longer keep to himself” and stated she “could be both a friend to [his] children and business partner”.

Ms Taylor made it clear that she did not reciprocate these feelings. The confession from Mr Drew caused anxiety, depression, and other related issues for Ms Taylor. Ms Taylor told Mr Grew that she wished to establish clear boundaries in their professional relationship, however, Mr Drew continued to buy her gifts, and in June 2020, he again raised his romantic feelings towards her.

Ms Taylor last attended work on June 2020 and informed Mr Grew that she was intending to make a complaint about his conduct. Via his lawyers, Mr Grew made demands for the return of gifts, threatened to report Ms Taylor to the police, and made allegations of misconduct against her. Ms Taylor claimed that this constituted victimisation, which had a “devasting impact” on her and exacerbated her symptoms.

Findings

It was held that Mr Grew sexually harassed Ms Taylor by slapping her on the bottom and declaring his feelings for her in January and June 2020. It was also held that Mr Grew victimised Ms Taylor in the letter sent via his lawyers.

Gifts

It was found that any gifts given to Ms Taylor before Mr Grew’s confession of romantic feelings in January 2020 could not be deemed unwelcomed, where Mr Grew often gave gifts to other members of staff. It was held that although any gifts given to Ms Taylor after she was slapped by Mr Grew were unwelcome, a reasonable person would not have anticipated the possibility that she would be offended, humiliated or intimidated by them.

The slap

The slap on the bottom was found to be “certainly unwelcome” and conduct of a sexual nature. Katzmann J outlined that not complaining about the slap at the time it occurred is immaterial to whether it constituted sexual harassment or not

Comments regarding appearance and declaration of romantic feelings

It was found that the comments regarding Ms Taylor’s appearance were unwelcome and when taken as a whole, constituted unwelcome conduct of a sexual nature. However, as the relationship between the pair was initially close and they would discuss all manner of topics, Katzmann J was not persuaded that a reasonable person would have anticipated the comments would offend, humiliate or intimidate Ms Taylor.

However, Mr Grew’s first and further declaration of romantic feelings to Ms Taylor were deemed unwelcome conduct of a sexual nature, where a reasonable person would have anticipated that Ms Taylor would be offended, humiliated or intimated by them.

Victimisation following complaint

Through the letter sent by Mr Grew by his lawyers demanding Ms Taylor to return various property, threatening to report her to the police and accusing her of misconduct after she proposed to make a complaint, Mr Grew caused Ms Taylor detriment by way of offence, humiliation and distress. It was held that Mr Grew did this because Ms Taylor had made the allegations of sexual harassment and a complaint against him.

Lessons for employers

This case is an important lesson for employers regarding what can constitute unwelcome conduct of a sexual nature. As stated by Katzmann J: “none of the conduct in question in the present case was explicitly sexual in the strict sense. Apart from the slap on the bottom, Mr Grew was not said to have touched Ms Taylor in an inappropriate way. Nor did he ask her for sex”. However, behaviour such as buying gifts, not respecting boundaries or declaring romantic feelings can all constitute unwelcome conduct of a sexual nature in the workplace.

The case also emphasises the importance of employer conduct after any allegations of sexual harassment are made, with strict protections regarding victimisation against complainants.

There is now a new positive duty on employers to take reasonable and proportionate measures to eliminate sexual harassment and victimisation in the workplace. Although the conduct in this present case occurred before the implementation of this duty, the case highlights the significant penalties employers may face if this duty is not met.

We’re here to help

The Employment, Safety and Migration team at Macpherson Kelley are able to assist in complying with the positive duty and safeguarding businesses from such significant penalties.