$90,000 award sends early signal under sexual harassment reforms

In the first published decision under the Fair Work Act’s new sexual harassment provisions, a café manager has been ordered to pay a young worker $90,000 following a serious incident of workplace sexual harassment. The ruling provides an early indication of how courts will approach remedies under the 2023 reforms, particularly where power imbalances and worker vulnerability are present.

Our Take

This decision underscores that the new sexual harassment provisions in the Fair Work Act are not symbolic reforms, but a substantive and accessible enforcement pathway with real financial consequences. Just as the Oracle decision set a new higher benchmark for damages in a vicarious liability case in 2014 this decision will do the same.

The Court had little difficulty finding that the manager’s conduct constituted sexual harassment under the newly inserted section 527D. The behaviour was deliberate, unwelcome and exploitative, occurring in circumstances where the worker was young, a migrant, casually employed and questioning whether she was being paid correctly. The manager’s position of authority — and his attempt to leverage financial inducements — significantly aggravated the conduct.

While the case involved a single incident, the Court accepted that the impact on the worker was profound. Importantly, the damages award reflects not only the seriousness of the conduct, but also the Court’s recognition of vulnerability, abuse of power and the deterrent purpose of the new regime.

The decision also highlights that section 527D creates a distinct and alternative pathway to traditional anti‑discrimination jurisdictions. Although damages may be informed by comparable cases, they are not constrained by precedent and will turn on the particular facts — including admissions, agreed positions and the worker’s circumstances.

Action Steps

• Review harassment policies and training - ensuring they expressly align with the Fair Work Act’s sexual harassment provisions. When is the last time you have done a review of your policies and done refresher training? Please refer to our earlier article discussing Loquias where we highlighted that tick and flick training won’t cut it.

• Emphasise individual accountability - particularly for owners, directors and managers who may face personal liability. Leaders have a proactive / positive duty to be informed, model ‘exemplar’ behaviour and take action to prevent infringing behaviour in the workplace.

• Address power imbalances - including risks affecting young, migrant, casual or otherwise vulnerable workers.

• Respond immediately and appropriately to pay queries or complaints - particularly where other risks may be present. Obvious yes, but it is often the ‘earlier’ dispute and its failure to resolve than ‘the straw the broke the camel’s back’ that creates the biggest problem.

• Do not underestimate damages exposure - even where medical evidence is limited or conduct occurs on a single occasion. The numbers are real. Expectations for higher damages become normalised after a while and this is likely to be happening right now.

• Ensure records and pay practices are compliant - as ancillary breaches can significantly increase penalties. Make sure you come to a dispute with ‘clean hands’.

Edge Legal

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