Poniatowska v Hickinbotham [2009] FCA 680

Poniatowska v Hickinbotham [2009] FCA 680

Mr Flynn's conduct in sending sexual emails and SMS messages after the applicant indicated she did not want a sexual relationship, and Mr Lotito's conduct in sending an offensive sexual MMS image and making sexual requests, constituted sexual harassment. ESA did not adequately respond to the applicant's legitimate complaints and, instead, gave unwarranted warning letters, suspended her and terminated her employment. The stated performance reasons were not the real reasons; the dismissal occurred because the applicant, as a female employee, would not tolerate sexual harassment and the robust sexualised workplace environment. ESA therefore discriminated against her on the ground of sex by...

Jurisdiction
Australia
Judgment Date
23 June 2009
Procedural Posture
Application Alleging Unlawful Discrimination, Sexual Harassment and Sex Discrimination Under the Human Rights and Equal Opportunity Commission Act 1986 (cth) and Sex Discrimination Act 1984 (cth) / Final Judgment and Orders After Hearing
Outcome
Application succeeded against the seventh respondent, Employment Services Australia Pty Ltd, for unlawful discrimination. Compensation and costs were ordered against the seventh respondent, with liberty to apply concerning contribution by certain individual respondents.
Legal Topics
['unwelcome Conduct of a Sexual Nature' 'sexual Harassment by Fellow Employees' 'discrimination by Dismissal' 'vicarious Liability' 'workplace Complaints and Investigations' 'assessment of Compensation for Unlawful Discrimination' 'implied Term of Trust and Confidence']
['human Rights' 'employment Law' 'sex Discrimination' 'sexual Harassment'] ['unwelcome Conduct of a Sexual Nature' 'sexual Harassment by Fellow Employees' 'discrimination by Dismissal' 'vicarious Liability' 'workplace Complaints and Investigations' 'assessment of Compensation for Unlawful Discrimination' 'implied Term of Trust and Confidence']

Case Brief

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Procedural Posture

Application Alleging Unlawful Discrimination, Sexual Harassment and Sex Discrimination Under the Human Rights and Equal Opportunity Commission Act 1986 (cth) and Sex Discrimination Act 1984 (cth) / Final Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Whether conduct alleged against employees constituted sexual harassment within s 28A and s 28B of the Sex Discrimination Act 1984 (Cth).' "Whether ESA's handling of the applicant's complaints and termination of her employment constituted sex discrimination contrary to s 14(2) of the Sex Discrimination Act 1984 (Cth)." "Whether the warnings, suspension and termination were genuinely based on unsatisfactory work performance or were related to the applicant's complaints about sexual harassment and workplace conduct." 'Whether compensation should be awarded under s 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).' 'Whether it was necessary to decide the asserted implied term of mutual trust and confidence in the employment contract.']

Ratio Decidendi

Mr Flynn's conduct in sending sexual emails and SMS messages after the applicant indicated she did not want a sexual relationship, and Mr Lotito's conduct in sending an offensive sexual MMS image and making sexual requests, constituted sexual harassment. ESA did not adequately respond to the applicant's legitimate complaints and, instead, gave unwarranted warning letters, suspended her and terminated her employment. The stated performance reasons were not the real reasons; the dismissal occurred because the applicant, as a female employee, would not tolerate sexual harassment and the robust sexualised workplace environment. ESA therefore discriminated against her on the ground of sex by...

Court Disposition

Application succeeded against the seventh respondent, Employment Services Australia Pty Ltd, for unlawful discrimination. Compensation and costs were ordered against the seventh respondent, with liberty to apply concerning contribution by certain individual respondents.

Orders

  • ['The seventh respondent pay to the applicant by way of compensation for unlawful discrimination contrary to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) the sum of $466,000, which sum includes interest.' 'The applicant and the seventh respondent have liberty to apply for an order that...