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Norman Waterhouse

Unrequited workplace love . . . at a cost of $170,000

Romance in the workplace is not an uncommon occurrence. While some instances may end up in life-long partnerships, it is quite common for dalliances to end up in tatters and romantic feelings are simply not reciprocated. As such, romantic relationships and pursuits in the workplace, especially when unsuccessful, can have dire effects in the workplace and more significantly may be considered sexual harassment.

In the recent case of Hill v Hughes [2019] FCCA 1267, a principal of a small law firm in New South Wale, Mr Hughes, has been found by the Federal Circuit Court of Australia (the Court) to have sexually harassed a former female employee, Ms Hill, over the course of her employment within the meaning of the Sex Discrimination Act 1984 (Cth) (the Act). The Court awarded Ms Hill damages (general and aggravated) in the sum of $170,000.

Mr Hughes believed that he was simply trying to pursue a romantic relationship with Ms Hill, while the Court found that he had failed to come to grips with what he had done to Ms Hill and the impact it has had on her. Mr Hughes’ conduct was considered by the Court to be a “very grave example of sexual harassment.”

Facts

Ms Hill began working with Mr Hughes in May 2015 at his law firm, Beesley and Hughes after being admitted to practice as a legal practitioner in April 2015. She commenced as a paralegal and then transitioned to being a solicitor.

Not long after commencing her employment Ms Hill started to receive emails from Mr Hughes that he found her attractive and wanted to be in a relationship with her. The sexual advances towards Ms Hill escalated over time. Examples include:

  • Mr Hughes invited Ms Hill to attend a family law matter in Sydney with him, where the two were planning on staying with Mr Hill’s brother in two separate bedrooms. When Ms Hill walked into her bedroom and opened the door, Mr Hughes was lying on the mattress in underwear and after being asked to leave, proceeded to hug Ms Hill. The next morning, Ms Hill returned to her bedroom in a towel after having a shower to see Mr Hughes again lying on her bed in underwear.
  • Sending highly inappropriate and excessively frequent emails to Ms Hill of a personal nature, expressing his desire to be with Ms Hill. Mr Hughes persisted in sending emails of this nature even after Ms Hill told him to stop or ignored them completely. Some of the wording of the emails include:
    • “I just wanted you to know that I could have loved you. I know I am intense and it is hard for a woman to believe that there can be an equal relationship”
    • “I know you might decide that we should just have a working relationship but I need someone.”
    • “Please do not see this as pressure”
    • “Please follow your heart and see we could have a beautiful life not just in work”
    • “The future is a world where you cannot run or hide”
    • “I want to be your lover and I do know how to be friends with you. The way it is you need to show me you will get there work wise. I can do a full staff assessment if you like. To be honest I can see you would get there like in a timeframe I can live with if I was at full speed and we were lovers but your work output is not there otherwise.”
    • “I have been very careful not to harass you... at the end of the day if you are going to do a complaint against me then I will defend it... I have tried my best with training and will continue to do so as long as you assure me you will not make a complaint or sue me.”

Unsurprisingly, Ms Hill resigned from her employment on 30 June 2016 and soon after commenced these proceedings.

Mr Hughes asserts that the emails he sent to Ms Hill were all after work hours and any ‘hugging’ occurred at the end of the day. He also said that Ms Hill was flirty and coquettish with him and wore alluring dresses and flicked her hair in a sensual manner.

In response to Ms Hill’s allegations that Mr Hughes was laying on her mattress in his underwear during the ‘work-related’ trip in Sydney, Mr Hughes said that it was a very hot night and if he had slept on the veranda as planned, he would have been eaten alive by mosquitoes. Mr Hughes maintained this story despite it being put to him that the Sydney trip was in the middle of winter. Mr Hughes also sought to excuse his behaviour because he took an anti-smoking drug.

Decision

The Court described Mr Hughes’ response regarding the Sydney trip to be “ludicrous and bizarre explanations” which were “quite clearly, a false account under oath.” Further, Mr Hughes’ evidence “bordered on ridiculous when he tried to blame the drug for his loss of control resulting in him writing what he wrote in the various emails” to Ms Hill.

The Court found that Mr Hughes’ conduct fell within the ambit of sexual harassment pursuant to section 28A of the Act. In particular, a number of unwelcome sexual advances were made by Mr Hughes. The Court was satisfied that Ms Hill was embarrassed, intimidated and humiliated by Mr Hughes’ conduct. In regards to the Sydney trip, Ms Hill gave evidence that she was humiliated when she realised that Mr Hughes did not bring her to Sydney because he valued her work or her legal acumen, but rather because he saw this as an opportunity to connect sexually with her. The Court had no doubt that Mr Hughes would have anticipated that his behaviour would have offended, humiliated or intimidated Ms Hill.

The Court was satisfied that Ms Hill suffered a psychiatric injury because of Mr Hughes’ conduct. Further, as a result of the sexual harassment, that Ms Hill’s personality profile has been significantly and adversely impacted. The Court awarded Ms Hill an amount of $120,000 in general damages. The Court also awarded aggravated damages of $50,000 because of the threats that Mr Hughes made to stop Ms Hill from making a complaint, in addition to the inappropriate manner in which Mr Hughes conducted himself during these proceedings.

Take Home Message

This decision is an example of serious and persistent sexual harassment within the workplace. The definition of sexual harassment pursuant to the Act remains broad enough to capture the different ways in which people communicate nowadays through technology. Sexual harassment is not confined to physical harassment.

Employers should strive to create a positive and friendly workplace culture in which behaviour of this kind is not tolerated, or in the event that it still occurs, employees feel safe to raise these matters with human resources and where appropriate action can be taken. Further, if there are relationships in the workplace, employers should consider implementing a close relationship policy.

For more specific information on any of the material contained in this article please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au or Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au.

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