Two recent decisions of the Federal Court of Australia have highlighted the difficulty applicants face in discharging the onus of proof when allegations of sexual harassment are made.
The two cases sit at opposite ends of the spectrum in terms of the volume of evidence led, but ultimately reached the same conclusion that the evidence did not establish that sexual harassment had occurred.
In the matter of Weller v Anderson [2021] FCA 503, the Applicant, Mr Weller, alleged that he had been sexually harassed by his employer, Mr Anderson. Both parties to the litigation were self-represented and filed numerous affidavits. However, neither party gave oral evidence and neither party was cross-examined.
After considering those portions of the affidavit evidence which were admissible, McKerracher J observed that, if Mr Weller’s version of events were to be accepted, it would be sexual harassment. While His Honour rejected Mr Anderson’s submission that inappropriate text messages sent to Mr Weller were ‘light-hearted banter’, the Court ultimately could not be satisfied that sexual harassment had occurred in circumstances where:
- Mr Anderson denied that he sent the texts to Mr Weller;
- Mr Anderson gave evidence that he left his phone on a desk for customer communications, and any member of staff could have sent the texts;
- Mr Anderson’s evidence was not challenged by Mr Weller; and
- the onus of proof to establish that sexual harassment occurred rested with Mr Weller, yet he failed to produce any corroboration of his allegations, and he led no evidence to establish any inconsistency or implausibility in Mr Anderson’s account.
Noting the serious nature of the allegations against Mr Anderson, the Court could not lightly conclude that the offending conduct had in fact occurred in the absence of compelling evidence.
The second case, Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784, involved a 13 day trial at which 27 witnesses gave evidence. The Federal Court ultimately dismissed the claim of an employee who alleged he had been subject to sexual harassment, finding that:
- although a culture of sexual harassment had existed at the workplace in the past, a change in management had brought a change in culture, and the employee had not been exposed to the previous culture;
- the practice of patting or slapping a colleague’s buttocks did not amount to sexual harassment where it occurred between friends as a greeting, as a joke, as a sign of congratulation for work well done or in order to gain each other’s attention; and
- language of a sexual nature was not intended as a sexual reference but was rather directed as an insult and was not likely to be unwelcome to the employee in light of the content of the employee’s posts on Facebook
