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Consensual sex reduces sexual harassment payout for receptionist

5 November 2012

A former receptionist has failed to overturn a finding that she had consensual sexual intercourse with her then manager, which had greatly reduced her sexual harassment compensation in the original trial.

In what appeal judges described as "an unfortunate case", they upheld Federal Court Justice John Mansfield's decision to award the South Australian receptionist only $12,000 and 20% of her legal costs, reporting no errors in his finding that she had engaged in consensual sex on four occasions during the period of alleged harassment.

In January this year, Justice Mansfield found her employer, The Truck Company, and the manager contravened s28B of the Sex Discrimination Act by sexually harassing her in a number of ways in late 2009

to early 2010.

The harassment related to gifts purchased when they went jet skiing together, when he urged her to go swimming with him on the way back from Port Wakefield, when he tried to share the cabin bunk of the truck with her on a trip back from Mount Gambier, the nature of gifts he gave her, including Playboy underwear and pyjamas, and the sending of sexually explicit phone images.

But Justice Mansfield found the conduct had not caused "any real detriment" to the receptionist. "I have found, indeed, that notwithstanding that conduct, she participated at some level in a mutual relationship with him during December 2009, which extended into January and February 2010, albeit with a significant setback due to the events which took place when she was in Tasmania with him in early January 2010, and that that relationship included four occasions of sexual intercourse," he said.

The judge did not accept that she suffered any economic loss as a result of the conduct. "She did not lose her employment because of it; nor was her employability affected because of it. It played no role in the onset of her illness, first diagnosed on 6 May 2010 or the need for treatment in respect of that illness," he found.

Justice Mansfield held that while the receptionist had been sexually harassed under s28B, she had not been discriminated against under s14. He ordered the company and the manager to jointly pay her $12,000 for non-economic loss.

In her appeal, the receptionist argued Justice Mansfield was wrong to accept the manager's evidence that she had engaged in consensual sex with him, and that other evidence showed that there was no available time when this could have occurred.

But the full court rejected this argument. "Without now revisiting the minutiae of the telephone and text records, it is apparent that there were sufficient windows or opportunities for sexual intercourse to have happened on each of the... occasions in question", they held.

The full court said Justice Mansfield was faced with a difficult task in determining which evidence to prefer. "The authorities such as Devries and Fox v Percy are clear that, in the absence of material which powerfully indicates that a primary judge's credit findings are wrong, the finding should not be interfered with on appeal," the court said.

The receptionist also argued her employer should have been compelled at the original trial to produce phone records to back up his version of events. But the full court said that as she had the burden of proof, it was up to her solicitors to subpoena the records, which they had failed to do.

Simply put, sexual harassment is any form of unwanted or unwelcome sexual behaviour, which may make someone feel offended, humiliated or intimidated. iHR warns that the law makes employers responsible for eliminating sexual harassment and victimisation as much as possible. Employers are legally liable for acts of sexual harassment against employees unless they can prove they took reasonable measures to prevent them.

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