June 2019

A new high water mark for aggravated damages in workplace sexual harassment

We have a new highest award for aggravated damages for sexual harassment in the workplace under the Sex Discrimination Act 1984 (Cth).  It is a welcome reminder that “unwelcome conduct of a sexual nature”[1] does not need to amount to assault to be treated seriously by the Courts.

The Federal Circuit Court recently awarded damages to an employee in the sum of $170,000, which included $50,000 in aggravated damages.[2]  While there have been larger monetary awards for sexual harassment, this is the largest amount awarded for aggravated damages, which require an additional element of malevolence, or spite, or ill will, by the harasser.[3]  The Court may also, as it did here, consider how the harasser’s behaviour up to, and during, the hearing have contributed to the victim’s distress and hurt.[4]

The harassment in this case was inflicted by Owen Hughes, the principal of a small law firm located just south of Byron Bay.  The victim was his firm’s paralegal, Catherine Hill.  Ms Hill is a single-mother who had recently completed her legal training and was tied to the Northern Rivers region because it was near her child’s father, her ex-partner.  Judge Vasta described Ms Hill as being “socially and individually vulnerable.”[5]

In that context, the Court found that Mr Hughes had engaged in repeated, unwanted, conduct of a sexual nature toward Ms Hill, which included:

  • coerced hugs,

  • entering and remaining in her room while she wore a towel (on a work-related trip to Sydney),

  • lying on a bed in her room, wearing only a singlet and boxer shorts, and

  • incessant emails containing ‘romantic’ propositions (including many poor attempts at the French language[6]), which were clearly unrequited.

So, what convinced the Court to award ‘aggravated’ damages? 

For starters, Mr Hughes made threats (albeit veiled) toward Ms Hill in his capacity as her employer.  Those threats were initially that he would terminate her employment if she did not accede to his advances.  Over time, the threats of dismissal became linked to any complaint that Ms Hill might choose to file. 

The Court was also appalled at Mr Hughes’s abuse of his position as Ms Hill’s legal representative in her unrelated family law matter.  In that capacity, Mr Hughes gained access to privileged material, which he used in these sexual harassment proceedings, in an apparent attempt to defame her character and blacken her name.  

All of these circumstances, including Ms Hill’s unique vulnerabilities, and Ms Hill’s chronic psychiatric condition as a result of Mr Hughes’s conduct, caused the Court to order $50,000 in aggravated damages, plus $120,000 in general damages, in Ms Hill’s favour. 

Judge Vasta also took the opportunity to slam Mr Hughes and his archaic view that Ms Hill had encouraged his actions by her perfume, her dresses, and her supposedly ‘flirty and coquettish’ behaviour.  His Honour said:

“It is a mark of a bygone era where women, by their mere presence, were responsible for the reprehensible behaviour of men.  The Sex Discrimination Act was enacted to help eliminate this sort of thinking.” [7]

Hear, hear.

Author: Ryan Murphy

Contributing Author: Amber Sharp

 

[1] Sex Discrimination Act 1984 (Cth), s28A.

[2] Hill v Hughes [2019] FCCA 1267.

[3] Hewett v Davies [2006] FMCA 1678, at [20].

[4] Cross v Hughes (2006) 233 ALR 108; Elliott v Nanda (2001) 111 FCR 240; Oberoi v HR&EOC [2001] FMCA 34.

[5] Hill v Hughes [2019] FCCA 1267, at [191].

[6] “The grammar used by the Respondent in these emails is atrocious and his use of the French language is even worse.” Hill v Hughes [2019] FCCA 1267, at [63].

[7] Hill v Hughes [2019] FCCA 1267, at [270].