MCD Legal’s Renae Harg and Madeleine Brown discuss the recent decision of the Federal Circuit Court, Hill v Hughes t/a Beesley and Hughes Lawyers, where the Court awarded $170,000 in damages to Ms Hill, a paralegal, who suffered a relentless barrage of sexual harassment by her employer.
What happened in this case?
Ms Hill worked for Beesley and Hughes Lawyers under the principal, Mr Hughes. She was employed as a paralegal after having recently been admitted as a lawyer.
Shortly after commencing employment, Mr Hughes offered to assist Ms Hill with a mediation with her ex-husband. Ms Hill agreed and provided Mr Hughes with ‘a great deal of personal information’ to allow him to prepare for and attend the mediation as her ‘legal representative’.
Mr Hughes then proceeded to engage in persistent sexual harassment towards Ms Hill by:
- entering her room and lying on a mattress at the foot of her bed in a singlet and boxer shorts on two occasions during a work trip to Sydney;
- sending her a relentless barrage of emails telling Ms Hill that he loved her and asking her to be with him;
- coercing hugs from her; and
- sending Ms Hill emails containing veiled threats that Ms Hill’s employment depended upon her entering into a sexual or romantic relationship with him.
Ms Hill did not respond, except to reiterate on a handful of occasions that she did not want any personal relationship with Mr Hughes and that his emails were unwelcome and needed to stop.
In June 2016, Ms Hill resigned from her role and made an application under the Sex Discrimination Act 1984 (Cth) claiming that Mr Hughes had sexually harassed her.
Mr Hughes provided a range of explanations for his behaviour including that he thought that Ms Hill was interested in him, that his behaviour was influenced by medication and that he sat on the mattress half-dressed because it was too hot for him to sleep elsewhere.
Mr Hughes also argued that his conduct could not be sexual harassment because he was seeking a deeper, loving relationship with Ms Hill and was not merely propositioning her. He also argued that his conduct was not work related as it occurred outside of work hours or at the end of the working day.
What did the Court decide?
The Court rejected Mr Hughes’ arguments as ‘ludicrous and bizarre’ and found that this case was a grave example of sexual harassment. Ms Hill was awarded $120,000 in general damages plus $50,000 in aggravated damages.
The Court commented that the fact Mr Hughes viewed himself as a ‘romantic’ did not detract from the fact that his actions were, to Ms Hill, ‘a daily nightmare’.
The Court found that Mr Hughes exploited his position of power as her employer by ‘proceeding according to his own desires as if they were the only things that truly mattered’, bombarding her with emails and coercing physical contact with her because he knew that she was desperate to keep her job. These actions were unwarranted, persistent and threatening.
In determining general damages, the Court held that the community generally accepts and understands that sexual harassment is insidious behaviour and that this should be reflected in damages awarded.
Aggravated damages are only awarded in extreme cases where a person’s conduct is especially reprehensible. The court considered that this case was one where aggravated damages should be awarded because Mr Hughes:
- knew that his conduct was unlawful but persisted anyway
- threatened Ms Hill’s job if she made a complaint and told her that he would ‘fight’ any such complaint
- raised irrelevant matters about Ms Hill’s personal life in the proceedings, including privileged information he knew of from acting as her legal representative, in an attempt to ‘silence or bully Ms Hill by defaming her character and blackening her name’
- sought to characterise Ms Hill as ‘encouraging’ his behaviour by wearing perfume and ‘alluring dresses’ and being ‘flirty and coquettish’. The Court noted this type of thinking is ‘utterly outrageous’ and ‘the mark of a bygone era where women, by their mere presence, were responsible for the reprehensible behaviour of men’.
This decision shows that the Courts take matters relating to sexual harassment seriously. Employers should ensure that they have taken all reasonable steps in relation to sexual harassment in the workplace, including regular training, ensuring they have up to date policies in place and appropriately investigating complaints.
Renae Harg (BA LLB, University of Western Australia) is a Senior Associate at MDC Legal. Renae has practiced in employment law since 2013. Prior to commencing with MDC Legal, Renae worked at a global law firm and boutique WA employment law firm. Renae has a broad range of experience in providing employment and workplace relations advice and has acted for individuals as well as small, medium and global employers. Renae provides advice and assistance in all employment law matters, including termination of employment, unfair dismissals, adverse action, discrimination, drafting of employment contracts and policies, enterprise bargaining, post-employment restraints and workplace investigations. Contact Renae at firstname.lastname@example.org
Madeleine Brown (BA LLB, University of Western Australia) is an Associate at MDC Legal. Prior to joining MDC, Madeleine had a varied professional background, which included working as a paralegal in private practice, volunteering in the community sector and most recently working at a union for employers. As a lawyer at MDC, Madeleine assists employees and employers with tailored solutions across a wide range of employment law matters from unfair dismissal and general protections claims to drafting contracts and interpreting modern awards and agreements. Contact Madeleine at MadeleineBrown@mdclegal.com.au or connect via LinkedIn