“Fanciful” sexual discrimination and harassment claims rejected by Federal Court: what is sexual harassment?

The Federal Court has rejected a University academic’s sex discrimination claim, based on more than 50 alleged incidents over five years of employment, finding that she subjectively reconstructed “innocent events” after failing to fulfil her professional ambitions.

The university employed the academic in its engineering faculty as a senior lecturer in 2008, promoting her to associate professor in 2012.

The judge said that she made no complaints about sexual harassment or discrimination in her first three years of employment, only raising them after her first bid for promotion failed in 2011.

The employee levelled a number of the allegations against her department head, including inappropriate physical contact, suggestive emails, and stalking. The academic also claimed that after she rejected the professor’s “advances”, he and another professor set about sabotaging her career progression.

In one example, the complaint related to two emails she received from her Professor. In the first email, the Professor wrote, “I apologise that I need to go to bed now.” In the second, he wrote, “I’m just off to bed.” The employee complained that, in sending these emails, the Professor engaged in sexual harassment. In her view, it was inappropriate for a male colleague to make references to bed in a professional email and the Professor was the only male colleague who had sent emails to her referring to a bed. The Court noted that both emails were sent in the early hours of the morning and implied the Professor was simply signalling his desire to be brief so that he could retire for the evening.

The judge concluded that while this and other allegations were serious and advanced with “great passion”, they were “without foundation”. The judge noted that she had “engaged in a subjective reconstruction of innocent events through the prism of unsatisfied expectations of a personal and professional nature”. “Some of the allegations were, on testing, fanciful; each was unsustainable.”

The judge found that many of the alleged incidents were not supported by the evidence and that they did not amount to discrimination or harassment under s5 of the Sex Discrimination Act.

He said the claims had “weighed heavily” against the two professors and other employees, who had endured an internal university investigation, another by the Australian Human Rights Commission, and a court hearing lasting 15 days.

The judge said he hoped his rejection of the application would deliver some relief to the University and the academics “whose reputations have been demeaned”. He said he had taken into account that English was the associate professor’s second language, which might have led to misunderstandings between her and her male colleagues. “Language difficulties may also have impinged on some of her submissions and evidence at trial, despite her insistence that she was able to conduct her case without the assistance of an interpreter,” the judge said.

But he said that she was not an impressive witness, and had also surreptitiously tape-recorded conversations with colleagues in an unsubtle attempt to draw admissions from them.

The two accused professors had, on the other hand, done their best to give truthful answers in recalling events that had occurred some years previously, the judge said. Both men had at times “displayed a mixture of genuine sadness and anger” at suggestions that they had attempted to damage the academic’s career, he said.

The Court dismissed the employee’s application and ordered her to pay the university’s and the two professors’ costs.

According to the Australian Human Rights Commission, sexual harassment is any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated. Sexual harassment is not interaction, flirtation or friendship which is mutual or consensual.

Sexual harassment is a type of sex discrimination. The Sex Discrimination Act 1984 (Cth) makes sexual harassment unlawful. It can take many different forms – it can be obvious or indirect, physical or verbal, repeated or one-off and perpetrated by males and females against people of the same or opposite sex.

iHR believes that Managers and Team Leaders have a responsibility as the custodians of their organisation’s workplace culture – a key element of the Manager’s role in preventing and effectively managing bullying, harassment and discrimination issues in the workplace. iHR offers training for Managers and Team Leaders to help prevent such incidents.

If a sexual harassment complaint arises, a properly conducted workplace investigation will underpin due process and likely be more defensible in any future court proceedings.