Published 25 October 2015
The Federal Circuit Court has found for a lingerie store manager after her employment contract was not renewed following a complaint she made regarding the inappropriate sexual advances of a male director at a work function.
Ms Crawford had formerly been employed as a lingerie store manager for Steadmark Pty Ltd, operating a number of lingerie stores throughout Australia.
Ms Crawford alleged she had been exposed to unlawful adverse action, claiming Steadmark had contravened section 340 of the Fair Work Act by dismissing the applicant as a result of exercising her workplace right to make a complaint regarding the conduct of a Managing Director towards her at a work function.
In April 2014, Ms Crawford attended a work dinner with a number of her colleagues. It is here that she alleged the a Managing Director made her feel “extremely uncomfortable” after repeatedly brushing his leg against hers and insisting she attend a dinner away from head office where they could discuss her future in more detail without being disturbed.
Ms Crawford claims she politely, but firmly declined, making clear that such inappropriate advances were not welcome.
Despite her reluctance, the following day the Ms Crawford called the Managing Director to inform him of the store’s daily sales figures. Ms Crawford claims the Director curtly responded, “[t]hanks very much for that, now that you have ruined my night you little slut”.
Ms Crawford reported the incident to her National Retail Manger, Ms Galina, who apologised and promised to commence an investigation. The company, however never followed up her complaint.
In May, after failing to attend a meeting due to illness, Ms Crawford received notice that her six month contract had ended and would not be renewed.
The Commission in coming to a decision, considered whether the applicant’s complaint was a “substantial and operative” reason for the decision not to re-employ her.
Under s361 of the Fair Work Act, there is a rebuttable presumption in favour of the employee, imposing an onus on the employer to prove that adverse action was not taken against the employee for exercising her right to make a complaint,
It was found that the timing of events, Ms Galina’s conduct in consciously trying to distance herself from the complaint, the likely sequence of events on the night in question and the post complaint conduct, were all factors making it reasonable to infer that the decision to take adverse action was motivated by Ms Crawford’s complaint.
Furthermore, it was concluded that Ms Galina’s denials proved insufficient to discharge the onus under section 361, Judge O’Sullivan of the opinion, that her oral evidence was simply an attempt to reconstruct her reasoning process with the benefit of hindsight due to the scrutiny the company was now under.
It was ultimately held that Steadmark had not discharged its burden and Ms Crawford was not re-employed for the substantial and operative reasons that she had made a complaint. Judge O’Sullivan ordered that Ms Crawford be compensated for her loss of income, but there was insufficient evidence to determine whether her re-employment would have continued for a substantial period of time had it not been for the adverse action. Consequently, Steadmark and Ms Crawford were directed to agree on an amount for compensation.