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The case, Taylor v August and Pemberton Pty Ltd [2023] FCA 1313, involved Fiona Taylor, the Production Manager, and Simon Grew, the sole Director of jewellery manufacturer August and Pemberton Pty Ltd t/a Grew & Co. Taylor was employed at Grew & Co from January 2018 to April 2022 and was sexually harassed by Grew over 22 months.

The harassment began after Grew revealed to Taylor that he had separated from his wife. Shortly after, Grew began gifting allegedly “unwelcome” gifts to Taylor. Other staff reported a culture of "generosity", however, the generosity Grew had shown Taylor exceeded that of other staff members, such as expensive jewellery, cash, a gift card, a massage and designer clothing.

There were 19 gifts given to Taylor from Grew. In addition, Grew would also refer to Taylor’s appearance in inappropriate manners, such as having “bedroom eyes” and that she looked “100% perfect” and had a “beautiful body”.

In mid-2019 in an apparent “expression of Mr Grew’s physical attraction”, Taylor alleged Grew slapped her on the bottom as she walked into her office. Taylor says she was so shocked, she responded by laughing at the incident. This made her concerned that Grew would see her reaction as an acceptance of the behaviour.

Soon after, the two were due to depart to the US on a business trip. To make her feelings clear, Taylor expressly communicated to Grew that she was not interested in any romantic relationship. Taylor explained that at the time, Grew had been respectful of her boundaries. However, on the trip, Grew gifted Taylor a ring which made her feel “uncomfortable”. Shortly after their return, Grew gifted a second ring and some gold hoops to Taylor, making her feel “trapped”.

Five months after Grew’s first declaration of affection, he directly asked Taylor if they were “going to become something”. Taylor reiterated she had no romantic interest in Grew and to let it go. Taylor explained that while driving to work the day after this encounter, she had to pull over because she was hyperventilating, shaking and uncontrollably crying – resulting in her having to take the day off work.

After this, the relationship between Taylor and Grew began to return to a professional standard, until Grew accidentally sent Taylor which was intended for another colleague. Taylor was the subject of the message and she felt the contents of the text was belittling. The next day, Grew requested a meeting with Taylor to discuss her alleged underperformance, resulting in Taylor leaving the office and later resigning.

Along with taking the sexual harassment case to the Federal Court, Taylor also lodged a victimisation case against Grew’s lawyers. One of the letters that Taylor received from Grew’s lawyers said that after sighting text message exchanges between Taylor and Grew, they believed Taylor should be “embarrassed” by making the sexual harassment claim in the first place. Grew’s lawyers also stated that if Taylor feels “triggered” by one of the rings Grew gifted her, she should just “return it to the company”. The lawyers also said Taylor had lied and manipulated Grew by using their working relationship for “pecuniary gain” and accused her of theft by not returning a work mobile phone. The lawyers insisted that should Taylor not return the phone, the ring and other gifts, Grew would file a police complaint. The court described this correspondence from Grew’s lawyers as “disrespectful, belittling, even offensive” – leading to a successful victimisation case for Taylor.

It was revealed during the court case that what Taylor had gone through had led to her experiencing depression, anxiety, disturbed sleep, lack of motivation and a reduction in social contact. This led Taylor to be diagnosed with a “chronic psychiatric disorder” by her psychiatrist. With this diagnosis and the toll of going to court, Taylor said she “grieves the loss of her career” and has to face the damage to her reputation.

As such, the court awarded Taylor $15,000 in aggravated damages, $23,100 compensation for past economic loss, $46,300 for future economic loss and $3000 for future expenses. This is on top of the court ordering Grew to pay $40,000 to Taylor for breaching protections against victimisation.

This is a landmark case because of the record payout of general damages under the Sex Discrimination Act (SDA) 1984 (Cth) (SDA) – $140,000. This was $20,000 higher than the previous record for a sexual harassment case, meaning that Taylor was awarded a total compensation of $268,230. While the decision was conducted prior to the introduction of an employer’s positive duty obligations, this case highlights the court’s willingness to award significant damages for contraventions of the SDA.

Federal Court Justice Anna Katzmann found a lot of the sexual harassment was implicit. Implicit sexual harassment and the sexualisation of women in the workforce often goes unaddressed, as it can be more difficult to justify that the behaviour is unwelcome.

A statement from Justice Katzmann included examples of implicit sexual harassment, as well as why this type of behaviour cannot be overlooked in comparison to explicit sexual harassment.

“Innuendo, insulation, implication, overtone, undertone, horseplay, a hint, a wink, or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome ... The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries,” Justice Katzmann said.

Positive duty enforcement commences on December 12, 2023. CCIWA's Respect@Work packs and services can assist you to meet these important new and onerous obligations.

Our Employee Relations Advice Centre is also available to respond to your questions on (08) 9365 7660, or via [email protected].