http://www.austlii.edu.au/au/cases/cth/FCA/2013/1311.html
HUMAN RIGHTS – discrimination – sexual harassment – employee alleged she was verbally and physically sexually harassed by a contract worker engaged by her employer – harassment alleged to have occurred at the employer’s office, at other venues and during travel – whether the conduct was by “fellow employee” within the meaning of s 28B(2) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether the conduct occurred at a place that is a workplace of both workplace participants within the meaning of s 28B(6) of the SD Act – meaning of “workplace” – whether “workplace” confined to premises exclusively occupied by workplace participants and not to common areas shared with others – whether the usual workplace of both workplace participants is only a “workplace” during working time – whether and in what circumstances a place other than the usual workplace of both workplace participants may be a “workplace” – whether the conduct alleged could be characterised as a “sexual advance”, “a request for sexual favours” or “conduct of a sexual nature” within the meaning of s 28A of the SD Act – considerations relevant to determining whether the conduct was “unwelcome” – considerations relevant to determining whether a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated – whether the conduct alleged was proved – conduct found to have contravened
s 28B(6) of SD Act.
EVIDENCE – s 140 Evidence Act 1995 (Cth) – considerations to be taken into account in considering whether case proved on balance of probabilities.
DAMAGES – orders under s 46PO(4) Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) – measure of damages – extent to which common law principles have application in the assessment of damages under the AHRC Act – whether aggravated damages may be granted to compensate for matters taken into account in the award of general damages – considerations for the award of exemplary damages where compensatory damages have significant punitive force.
DAMAGES – double recovery – claims settled against both the applicant’s employer and the respondent’s employer – terms of settlement not disclosed to the Court – possibility of double recovery – prior satisfaction of applicant’s loss to be taken into account at time damages awarded – orders made requiring terms of settlement to be disclosed.