Responding to sexual harassment claims

In Poniatowska v Hickinbotham [2009] FCA 680 the Federal Court found an employer discriminated against Ms Poniatowska on the ground of her sex, and contravened s 14(2)(c) of the Sexual Discrimination Act by so discriminating against her by dismissing her. The judge ordered damages of $463,000 calculated as follows:

  • past and the future disadvantage for pain and suffering : $90,000
  • loss of earning capacity $200,000
  • future loss of earning capacity :$140,000
  • future medical expenses: $3000
  • Interest: $30,000

The significant facts (besides the actual finding of sexual harassment by a co-employee) were the employer’s response to the employee’s complaints:

In my judgment, Ms Poniatowska was not dismissed for the reasons stated in the termination letter. I also find, for the reasons indicated, that none of the first warning letter, the second warning letter, the third warning letter or the suspension letter set out accurately matters about which her employer was satisfied that she had conducted herself in her employment so as to warrant the giving of those letters. Put bluntly, I find that none of those warning letters, or the suspension or termination of her employment, were for her poor work performance.

I find that there was a different, but consistent, motivation for those communications. It was to set the scene for the termination of, and ultimately to terminate, Ms Poniatowska’s employment because she had, over a period of time, revealed by what she had done in relation to the May 2005 allegations, the June 2005 allegations and the Lotito allegations, a sensitivity to the conduct of the type to which those allegations related.

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