Hely, Brook --- "Open All Hours: The Reach of Vicarious Liability in 'Off-Duty' Sexual Harassment Complaints" [2008] FedLawRw 7; (2008) 36(2) Federal Law Review 173
[*] BA (Hons), LLB (Hons), LLM (Human Rights and Social Justice). Senior Lawyer, Australian Human Rights Commission. The views expressed are my own and not those of the Commission. Special thanks for the useful comments on an earlier draft from Jonathon Hunyor, Tristan Garcia, Dr Belinda Smith, Karen Toohey, Jodie Ball, Kara Ward and Elizabeth Broderick, as well as two anonymous referees.
[1] It is noted that the relevant vicarious liability provisions also relate to agents, as well as employees. I have chosen, however, to focus on the employer/employee relationship for the purposes of this article.
[1] [2007] FMCA 59; (2007) EOC 93–456 ('Lee').
[2] Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370. See generally, Rick Glofcheski, 'A Frolic in the Law of Tort: Expanding the Scope of Employers' Vicarious Liability' (2004) 12 Tort Law Review 18, 19–23.
[3] See, eg, Scott v Davis (2000) 204 CLR 333; John Salmond, The Law of Torts (1st ed, 1907) 83; R F V Heuston and R A Buckley, Salmond and Heuston on the Law of Torts (21st ed, 1996) 443.
[4] Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 733–4 (Diplock LJ), discussed in NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511, 535–6 [40]–[41] (Gleeson CJ), 614 [308] (Kirby J).
[5] [1987] 2 SCR 84 ('Robichaud').
[6] Ibid 92.
[7] [1997] 2 All ER 406 ('Tower Boot').
[8] Ibid 415 (Waite LJ, Potter LJ agreeing).
[9] Ibid.
[10] [2005] FCAFC 130; (2005) 144 FCR 402 ('Trainor').
[11] Ibid 414–5 [64]–[70].
[12] Ibid 410 [42].
[13] It has been held that sexual harassment is a 'species of unlawful sex discrimination', at least in the employment context: Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217, 277 (French J). See also at 235 (Lockhart J); Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1, 16–7 (Spender J); Elliott v Nanda [2001] FCA 418; (2001) 111 FCR 240, 281 [127] (Moore J); but compare Gilroy v Angelov [2000] FCA 1775; (2000) 181 ALR 57, 75 [102] (Wilcox J).
[14] See, eg, San v Dirluck Pty Ltd [2005] FMCA 750; (2005) 222 ALR 91; Font v Paspaley Pearls [2002] FMCA 142; (2002) EOC 93–232; Aleksovski v AAA Pty Ltd [2002] FMCA 81; (2002) EOC 93–219; Johanson v Blackledge [2001] FMCA 6; (2001) 163 FLR 58, 80 [97]–[98].
[15] [2002] FCA 32 ('Leslie'). It is noted, however, that earlier decisions had impliedly accepted that an office Christmas party was an extension of the workplace. See, eg, Dobrovsak v A R Jamieson Investments Pty Ltd [1995] HREOCA 32; Shellharbour Golf Club v Wheeler [1999] NSWSC 224; (1999) 46 NSWLR 253; Murphy v Colorific Lithographics Pty Ltd [1996] VADT 30. It had also been held that an employee could be personally liable for off-duty sexual harassment of a fellow employee, even if there was no other nexus with the employment: Q v John Defelice (2000) EOC 93–051, 74,131:
The respondent was a fellow employee of the complainant and consequently the complaint is within the terms of sec 28B [of the SDA]. That section does not require a nexus between the place or circumstances of employment and the sexual harassment of an employee by a fellow employee.
[16] SDA s 28B(2): 'It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.'
[17] [2002] FCA 32, [71]–[72].
[18] This was the interpretation of this passage taken by the Full Court in Trainor [2005] FCAFC 130; (2005) 144 FCR 402, 409 [36] (Black CJ and Tamberlin J, Kiefel J agreeing).
[19] [2002] FCA 32, [71].
[20] [2005] FCAFC 130; (2005) 144 FCR 402.
[21] Ibid 410 [41].
[22] Ibid 409 [40].
[23] Ibid 413–4 [62]–[64].
[24] Ibid 414–5 [65]–[70].
[25] Ibid 416 [74].
[26] Ibid. It is noted that her Honour's reference to the rooms being 'accessible' would appear to be a reference to the finding at first instance that the applicant was unable to lock her room. This had contributed to the harassment occurring because on each occasion Mr Anderson had let himself into the applicant's room uninvited. See Trainor v South Pacific Resort Hotels Pty Ltd [2004] FMCA 371, [36]–[38], [74].
[27] [2005] FCAFC 130; (2005) 144 FCR 402, 416 [74].
[28] Ibid.
[29] Ibid.
[30] [2007] FMCA 59; (2007) EOC 93–456.
[31] See, generally, Alex Newton, 'Beyond the Common Law: Employer held Responsible for Rape by Employee — Is this a new Frontier in Vicarious Liability?' (2007) 45(6) Law Society Journal 38.
[32] Lee [2007] FMCA 59; (2007) EOC 93–456, [198].
[33] Ibid [87]–[94].
[34] Ibid. Discussed at [13] and [70]–[71], with findings on this allegation made at [92]–[94].
[35] It is important to observe that the applicant's evidence regarding the relevant series of events was refuted by not only Mr Smith, but also Ms O'Shannessy and Mr Storey. However, Connolly FM rejected their evidence, making a number of scathing remarks about these witnesses along the way. For example, at [84]: 'Mr Storey was prepared to say whatever suited his purpose and ... was not too troubled by telling the truth.' See also at [85]: 'I found [Mr Smith] to be an unimpressive witness who was evasive in his answers to many questions and untruthful to some others'. See also [97], [103], [110]–[111], [140], [143] and [203].
[36] It is noted that his Honour did not make a clear finding as to whether the rape occurred at Mr Smith's residence, or at Ms O'Shannessy and Mr Storey's residence. However, it is submitted that the former appears to have been impliedly accepted by his Honour: see ibid [17]–[19] and [116]–[117].
[37] Ibid [206]
[38] Ibid [206].
[39] Ibid [203].
[40] Ibid.
[41] Ibid [199]: 'It may well have been the case, had the Applicant had the opportunity of attending such a course, she may well have been better equipped to deal with the earlier pornography in the workplace and by reporting those matters, it may have been that what occurred during and soon after the course could have been avoided and ultimately, the rape itself could have been avoided.'
[42] See also McAlister v SEQ Aboriginal Corporation [2002] FMCA 109; Cross v Hughes [2006] FMCA 976; (2006) 233 ALR 108; Frith v The Exchange Hotel [2005] FMCA 402. For a detailed survey of federal sexual harassment cases dealing with vicarious liability, see Patricia Easteal and Skye Saunders, 'Interpreting Vicarious Liability with a Broad Brush in Sexual Harassment Cases' [2008] AltLawJl 21; (2008) 33(2) Alternative Law Journal 75.
[43] [2008] VCAT 261 ('A v K Ltd').
[44] It is noted, however, that in Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143 one of the complaints of sexual harassment involved phone calls and text messages outside work hours. However, it is not clear from the decision whether this formed part of the relevant conduct held to constitute sexual harassment. In any event, there was also no direct consideration of whether there was a sufficient nexus with employment in respect of the after hours phone calls and text messages. In Webb v Newcastle Hire Cars Pty Ltd [2004] NSWADT 142, the applicant alleged (amongst other things) inappropriate conduct during a date with a fellow employee. However, this allegation was rejected on the basis that it was not unwelcome, with no discussion of vicarious liability (see [108]–[111]). In Brown v Richmond Golf Club [2006] NSWADT 104 one of the allegations of sexual harassment related to an attempted kiss at a private dinner party between two work colleagues. This allegation was rejected on the basis that the relevant kiss did not reach the threshold of sexual harassment. There was no discussion of whether the employer would have held been vicariously liable for this aspect of the alleged harassment: see [17]–[31].
[45] Equal Opportunity Act 1984 (WA) s 161(1); Anti-Discrimination Act (NT) s 105(1).
[46] Anti-Discrimination Act 1991 (Qld) s 133(1); Equal Opportunity Act 1995 (Vic) s 102; Equal Opportunity Act 1984 (SA) s 91(1).
[47] [2005] FCAFC 130; (2005) 144 FCR 402, 410 [42].
[49] Ibid [135]: 'I accept the words "in connection with" should be given a more expansive meaning than that given to words such as "in the course of" or "in the scope of".'
[50] [2005] FCAFC 130; (2005) 144 FCR 402, 414 [67].
[52] Ibid [40].
[53] Ibid.
[54] Ibid [42].
[55] Ibid [41] (emphasis added).
[56] Ibid [45]. The court did not address the legal issues in any great detail in relation to the second incident.
[57] At the time of writing, the substantive proceeding in relation to the second incident had not yet been heard.
[58] [1999] NSWSC 224; (1999) 46 NSWLR 253 ('Shellharbour').
[59] Ibid 259 [33] (emphasis in bold added).
[60] This might be compared with the absence of vicarious liability provisions in the Racial Discrimination Act 1975 (Cth) prior to 1990. In Surti v State of Queensland [1993] HREOCA 3, Commissioner Bryce observed: 'Also, at the time of the alleged discriminator conduct, the Act did not contain any provision for vicarious liability. An examination of the parliamentary debates at the time of the enactment of the Act in 1975 shows that this omission was a purposeful one by the Parliament. Accordingly, the complainant must show that the respondent was directly responsible for the alleged discriminatory conduct.'
[61] See Marshall v Discrimination Commissioner [1996] ACTAAT 147, [71]; Goold v Goudie [1999] ACTDT 3. It is also noted that the Discrimination Act separately prohibits sexual harassment between fellow employees: s 59(6).
[62] (1988) EOC 92–229.
[63] Ibid 77,173. This approach was adopted by the NSW Administrative Tribunal in Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143, [113] and [158]. For an example of cases dealing with direct liability under the Racial Discrimination Act 1975 (Cth) prior to the insertion of vicarious liability provisions, see, eg, Kordos v Plumrose (Australia) Limited (1989) EOC 92–256, 77,512–4; Surti v The State of Queensland [1993] HREOCA 3. Note, however, that the RDA included a specific provision making an employer directly liable for conduct of its employees in particular circumstances.
[64] See, generally, Glovchevski, above n 3.
[65] As noted by Allsop J in Thomson v Orica Australia Pty Ltd [2002] FCA 939, [141]: '...there is ample authority for the implication of a term in a contract of employment that the employer will not, without reasonable cause, conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee.' It has been held, for example, that resignation as a result of sexual harassment may constitute a constructive dismissal of an employment contract on the basis that the employer's conduct amounted to serious breach of the contract. See, eg, Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143, [114]–[115]; Taylor v Sciberras [2004] NSWADT 104, [151]; Gliddon v Woodley (2001) EOC 93–114.
[66] Anti-Discrimination Act 1977 (NSW) s 53(3).
[67] Anti-Discrimination Act 1977 (NSW) s 53(1). For examples of how s 53(1) has been applied in practice, see Caton v Richmond Club Limited [2003] NSWADT 202, [143]; Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143, [94]–[98]; Brown v Richmond Golf Club [2006] NSWADT 104, [64]–[66]; Shellharbour [1999] NSWSC 224; (1999) 46 NSWLR 253, 265.
[68] [1999] NSWSC 224; (1999) 46 NSWLR 253, 265 [68], approving a passage of the decision at first instance: 'However in our view these cases [considering s 106 of the SDA] are of limited assistance because s 53(1) of the New South Wales Act provides the club with a defence if it can establish it did not authorise the second respondent to engage in the conduct in question. It, therefore, appears to be a less difficult defence to establish than s 106(2) of the Commonwealth Act.' See also at 265 [69].
[69] McKibbin v State of SA (Office of the Public Trustee) [2004] SAEOT 1, [42]: 'In effect, a right to damages and vicarious liability depend upon the alleged victim establishing that the person who has failed to prevent sexual harassment or the employer "...instructed, authorised or connived..." at the sexual harassment.' See further at [54]. It is noted, however, that a wide meaning of 'authorised' was applied in that case.
[70] SDA s 106(2).
[71] Anti-Discrimination Act 1977 (NSW) s 53(3); Equal Opportunity Act 1984 (WA) s 161(2); Anti-Discrimination Act (NT) s 105(2). Similarly, s 91(4) of the Equal Opportunity Act 1984 (SA) uses the language 'all reasonable diligence'.
[72] Anti-Discrimination Act 1991 (Qld) s 133(2); Anti-Discrimination Act 1998 (Tas) s 104(2).
[73] Equal Opportunity Act 1995 (Vic) s 103.
[74] However, the operation of the 'reasonable steps' defence in Tasmania is not clear. Section 104(1)(c) imposes an obligation on employers to 'ensure' that its employees do not engage in 'such conduct', yet it is not clear whether the expression 'such conduct' is referable to preceding sub-paragraph (a) or (b) — ie, 'conduct to which this Act relates' or conduct of a kind to which an order under s 82 relates. If (a), it could be argued that an employer may be held vicariously liable even if it has taken 'reasonable steps', on the basis that it has not 'ensured' that its employees have not engaged in prohibited conduct which is suggestive of a stricter test. The imposition of vicarious liability under s 104(2) is contingent upon failure to comply with the section as a whole, not simply a failure to take reasonable steps. As far as I am aware, however, this issue has not yet been considered by the courts and tribunals in Tasmania.
[76] Ibid [98] (emphasis in bold added).
[77] Lee [2007] FMCA 59; (2007) EOC 93–456, [209] (emphasis added). See also Bachleda v Associated Steamships Pty Ltd t/a ASP Ship Management and Piesik [1997] HREOCA 48: 'The test to avoid vicarious liability since December 1990 is quite strict since one has to take all reasonable steps.' Compare, however, with the arguably less stringent approach taken by Rimmer FM in McAlister v SEQ Aboriginal Corporation [2002] FMCA 109, [147]: 'Whilst I accept that [the respondent] could have perhaps done more, that is not the test set out in s 106(2), it is simply that the employer must take all reasonable steps to prevent the harassment complained of from occurring. They do not have to take every step possible to ensure that it does not occur.'
[79] Ibid [175].
[80] For a useful comparative summary of different features, coverage and exceptions under each of the State, Territory and federal discrimination laws, see Chris Ronalds and Rachel Pepper, Discrimination Law and Practice (2nd ed, 2004), Appendices A–D.
[81] Sex Discrimination Act 1975 (UK) s 41. See also Race Relations Act 1976 (UK) s 32(1), for vicarious liability for race discrimination.
[82] [1999] ICR 547 ('Stubbs').
[83] Ibid 559, quoting paragraph 36 of the decision at first instance.
[84] Ibid, quoting paragraph 44 of the decision at first instance.
[85] Ibid 560, quoting paragraph 99 of the decision at first instance.
[86] Ibid 558 (Morison J).
[87] Ibid.
[88] Ibid.
[89] [2005] FCAFC 130; (2005) 144 FCR 402, 416 [73] (Kiefel J).
[90] [2007] FMCA 59; (2007) EOC 93–456, [204] (Connolly FM).
[91] (Unreported, Employment Appeal Tribunal, Ansell J, Ms Branney and Prof Wickens, 13 January 2004) ('Livesey').
[92] Ibid, esp at [15] and [20]–[21].
[93] [1997] ICR 1073 ('Waters').
[94] Ibid 1095–6 (Waite LJ, Evans and Swinton Thomas LJJ agreeing).
[95] [2000] EWCA Civ 183; [2001] ICR 167 ('Sidhu').
[96] Ibid 171 [11], quoting paragraph 16 of the decision at first instance.
[97] Ibid 176 [28].
[98] [2000] EWCA Civ 183; [2001] ICR 167, 28 (Gibson LJ, Brooke and Robert Walker LJJ agreeing).
[99] Mary-Jane Ierodiaconou, 'After-Hours Conduct' (2004) 78(4) Law Institute Journal 42, 44.
[100] (Unreported, Australian Industrial Relations Commission, Ross VP, 4 December 1998, Print Q9292) ('Rose').
[101] [2002] AIRC 1318 (PR924103) ('Graincorp').
[102] Ibid [39].
[103] (Unreported, Australian Industrial Relations Commission, Ross VP, 4 December 1998, Print Q9292).
[104] For cases taking an arguably narrower approach to the nexus requirement, see, eg, Applicant v Respondent (unreported, AIRC, Deputy President Blake, Print P9973, 20 May 1998) (unreported, AIRC Full Bench, Senior Deputy President MacBean, Deputy President Duncan, Commissioner Deegan, Print R1221, 1 February 1999); Tichy v Department of Justice [2005] AIRC 136 (PR955783); Tichy v Department of Justice [2005] AIRC 592 (Full Bench) (PR959660).
[105] [2007] NSWIRComm 33 ('Miller').
[106] Ibid, see esp at [70], [80], [87], [100], [106]. Surprisingly, however, the Commission ultimately held that the termination was harsh because it was disproportionate to the gravity of the sexual harassment involved: [122]–[123].
[107] [2002] AIRC 1318 (PR924103), [39].
[108] [1996] FCA 1820; (1996) 70 FCR 16 ('McManus').
[109] Ibid 29. His Honour also added at 29: 'This may be formulated somewhat more narrowly than is necessary, but it is sufficient for present purposes.' See also Smith v The Christchurch Press Co Ltd [2000] NZCA 341; [2001] 1 NZLR 407; Farquharson v Qantas Airways Limited [2005] AIRC 982 (PR965161).
[110] The Streeter decision generated considerable media attention for its salacious facts. See, eg, Ewin Hannan, 'After Hours', The Australian, 20 August 2007, available at <http://www.theaustralian.news.com.au/story/0,25197,22271789-28737,00.html> at 15 October 2008: 'SINNER or sinned against? Carlie Streeter's successful challenge to being sacked by Telstra over an after-hours sex romp has attracted heavy traffic to online forums, with readers intrigued by the tale of sex, baths and booze.' See also Ewin Hannan, 'Woman back in job after sex romp', The Australian, 13 August 2007, available at <http://www.theaustralian.news.com.au/story/0,25197,22234527-5006784,00.html
> at 15 October 2008.
[111] [2007] AIRC 679 (PR977958) ('Streeter').
[112] Ibid [118]–[121], [146].
[113] Ibid [147]–[150]. This finding was overturned on appeal, on the basis that Ms Streeter's level of dishonesty during Telstra's internal investigation of the matter destroyed the relationship of trust and confidence between Telstra and Ms Streeter: Telstra Corporation Limited v Streeter [2008] AIRCFB 15 (PR980356), [23]. The Full Bench did not, however, disturb the finding at first instance that the events in the hotel room were work-related.
[114] See, eg, Farquharson v Qantas Airways Limited [2005] AIRC 982 (PR965161). Cf Rose v Telstra (Unreported, Australian Industrial Relations Commission, Ross VP, 4 December 1998, Print Q9292).
[115] (2001) 284 AR 1 (Alberta Court of Queens Bench).
[116] Ibid 51-2.
[117] See, eg, McManus [1996] FCA 1820; (1996) 70 FCR 16.
[118] Streeter [2007] AIRC 679, [118].
[120] Ibid 95.
[121] See, esp, Trainor [2005] FCA 7; (2005) 144 FCR 302, 416 (Kiefel J); Lee [2007] FMCA 59; (2007) EOC 93–456, [203]; Leslie [2002] FCA 32, [71] (applying the New Zealand employment law case of Smith v The Christchurch Press Co Ltd [2000] NZCA 341; [2001] 1 NZLR 407).
[122] Quoted in Ewin Hannan, 'After Hours', The Australian, 20 August 2007, available at <http://www.theaustralian.news.com.au/story/0,25197,22271789-28737,00.html> at 15 October 2008.
[123] See, eg, Streeter [2007] AIRC 679 (PR977958), [149]: '[T]he less direct the relationship with the workplace the more serious the misconduct would need to be to justify termination of employment.'
[124] See, generally, Sharon Rabin-Margalioth, 'Love at Work' (2006) 13 Duke Journal of Gender Law and Policy 237, 247: 'Under the guise of protecting their employees from sexual harassment, employers are continuously expanding their sexual harassment policies to incorporate non-fraternization clauses or other informal means of restricting and regulating intra-organizational intimate interaction.' See also Rebecca J Wilson, Christine Filosa and Alex Fennel, 'Romantic Relationships at Work: Does Privacy Trump the Dating Police?' (2003) 70 Defense Counsel Journal 78, 79: 'Many employers adopt anti-fraternization policies in an effort to avoid the numerous types of liability they might otherwise confront.'
[125] Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199. See, generally, Des Butler, 'A Tort of Invasion of Privacy in Australia?' [2005] MelbULawRw 11; (2005) 29 Melbourne University Law Review 339.
[126] See, generally, Wilson et al, above n 125, 82–6; Rabin-Margalioth, above n 125, 248.
[127] 797 F Supp 1349 (S D Miss, 1992).
[128] [1993] USCA7 1154; 3 F 3d 1035 (7th Cir, 1993).
[129] Ibid 1037. See also New York v Wal-Mart Stores, 621 NYS 2d 158 (App Div 3d Dept, 1995).
[130] Wilson et al, above n 125, 87.
[131] See Rabin-Margalioth, above n 125, 249.
[132] Ibid 249. For a detailed discussion of the legal basis and potential effect of such contracts, see Jessica Lynn Mok O'Neil, 'If You Love Me Dear, Please Sign Here: Will the "Love Contract" Play a Role in Protecting Employers from Sexual Harassment Liability?' (2006) 40 John Marshall Law Review 311.
[133] O'Neil, above n 133, 321–2.
[134] S Rabin-Margalioth, above n 125, 252.
[135] See Myles Wearring, 'Flirt your way to the Top', 26 September 2007, available at: <http://www.news.com.au/business/story/0,23636,22472607-5012424,00.html> at 15 October 2008:
In a bid to reduce sexual harassment claims, some companies - including a number of multinational restaurant chains - have imposed non-fraternisation policies, banning flirting and inter-office relationships.
[136] See, eg, Aleksovski v AAA Pty Ltd [2002] FMCA 81, [88]: 'It is generally accepted that "all reasonable steps" in connection with sexual harassment in the workplace means that the employer is required to have a policy in relation to sexual harassment which should be clear and placed in written form and communicated to all members of the workforce. But in addition to that it is generally considered that continuing education on sexual harassment should be undertaken.' For a guide to appropriate steps for employers to take in preventing sexual harassment, see Human Rights and Equal Opportunity Commission, Sexual Harassment in the Workplace: A Code of Practice for Employers (2004), available at: <http://www.humanrights.gov.au/sex_discrimination/workplace/code_practice/index.html> at 15 October 2008.
[137] See, eg, Cooke v Plauen Holdings [2001] FMCA 91, [37]: 'Care needs to be taken when considering the meaning of the expression "taking reasonable steps to prevent the sexual harassment occurring". The SDA does not distinguish between large and small employers, in terms of the availability of a defence under s 106 (2): Gilroy v Angelov [2000] FCA 1775, [100]. As was apparent in that case, however, it would be unrealistic to expect all employers, regardless of size, to adhere to a common standard of preventative measures. This defence has been interpreted in Australia as requiring the employer to take some steps, the precise nature of which will be different according to the circumstances of the employer. Thus, large corporations will be expected to do more than small businesses in order to be held to have acted reasonably. I note, however, that the reasonableness factor applies to the nature of the steps actually taken and not to determining whether it was reasonable not to have taken steps in the first place.' See also McAlister v SEQ Aboriginal Corporation [2002] FMCA 109, [143].
[138] O'Callaghan v Loder [1984] EOC 92–023, 75,506. See generally Gail Mason and Anna Chapman, 'Defining Sexual Harassment: A History of the Commonwealth Legislation and its Critiques' [2003] FedLawRw 6; (2003) 31 Federal Law Review 195, 201–6.
[139] [1989] 1 SCR 1252 ('Janzen').
[140] Ibid [49].
[141] Catharine MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (1979) 162. See also Arjun Aggarwal, Sexual Harassment in the Workplace (1987) 1: 'Sexual harassment may be an expression of power or desire or both. Whether it is from supervisors, co-workers or customers, sexual harassment is an attempt to assert power over another person.' Quoted in Janzen [1989] 1 SCR 1252, 1280.
[142] MacKinnon, above n 142, 1, cited in Janzen [1989] 1 SCR 1252, 1280.
[143] Janzen [1989] 1 SCR 1252, 1285, citing M A Hickling, 'Employer's Liability for Sexual Harassment' (1988) 17 Manitoba Law Journal 124, 127.
[145] Ibid 370. And further (at 371):
It would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment.
See also Leach v Canadian Blood Services (2001) 284 AR 1, 49-56.
[146] Ibid 371-2:
Because of the power imbalance in an employee's relationship with a supervisor, and the perceived consequences to objecting to a supervisor's behaviour, ... an employee may go along with conduct. In those circumstances, the employee will be effectively consenting to unwelcome conduct because she feels constrained from objecting.
[147] Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231, 260–1 (McHugh J). See also Qantas Airways Limited v Christie (1998) 193 CLR 280, 332 (Kirby J); Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 20 applying Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 423; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112–13; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381, 384.
[148] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J); IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 14 (Brennan CJ and McHugh J), 22–3 (Dawson and Gaudron JJ), 27 (Toohey J), 39 (Gummow J), 58 (Kirby J); X v Commonwealth (1999) 200 CLR 177, 223 (Kirby J); Qantas Airways Limited v Christie (1998) 193 CLR 280, 332 (Kirby J).
[149] Legislation Act 2001 (ACT) s 139; Acts Interpretation Act 1901 (Cth) s 15AA; Interpretation Act 1987 (NSW) s 33; Interpretation Act (NT) s 62A; Acts Interpretation Act 1954 (Qld) s 14A; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation of Legislation Act 1984 (Vic) s 35(a); Interpretation Act 1984 (WA) s 18.
[150] Mills v Meeking [1990] HCA 6; (1990) 91 ALR 16, 30–1 (Dawson J).
[151] Ronald McCallum, Employer Controls over Private Life (2000) 5–6.
[152] See, eg, Laura Anderson, 'Sex and the office', The Advertiser, 27 February 2008, p 19; AAP, 'Women warned: cyber groping on the rise', Sydney Morning Herald, 29 March 2006, available at: <http://www.smh.com.au/news/technology/women-warned-cyber-groping-on-the-rise/2006/03/28/1143441148690.html> at 15 October 2008; Dianne McKean, 'Net harassment tolerated', The Australian, 7 June 2006, available at:
<http://www.australianit.news.com.au/story/0,24897,19385558-15318,00.html> at 15 October 2008.
[153] Chris Ronalds, 'Sexual Harassment — Don't Cop It' (Speech delivered at the Queensland Police Service Conference, Brisbane, 18 October 2007) 34.
[154] Janzen [1989] 1 SCR 1252, 1253 (emphasis added).
[155] [1996] FCA 1820; (1996) 70 FCR 16.
[156] Ibid 28–9.
[157] [2000] NZCA 341; [2001] NZLR 407.
[158] [2005] FCAFC 130; (2005) 144 FCR 402, 416 [73] (emphasis added).