Her boss tied a request for sex to her job; his company was liable too

What happened

In August 2020 Ms Trakimaite began work as an office administrator at Axe Construction Group Pty Ltd (Axe Construction), a Sydney construction company. She already knew its sole owner and director, Mr Aubertin, socially. She started on $23.07 an hour, which rose to $28 on 1 December 2020, and she also worked as a waitress in a second job.

During her employment the two had a consensual, non-exclusive sexual relationship, and much of their messaging was banter.

On 31 October 2020 Mr Aubertin, who had been drinking, asked her more than once to come to his home for sex. She said no twice and suggested a movie instead. His tone changed. He texted that she was "finished" and that he did not think they could "work together anymore". She understood this as a threat to her job, rang him and agreed to go to his house. They had sex that evening. A few hours later she told a co-worker she was worried about her job.

The relationship continued until December 2020. Her job ended by 30 December 2020, shortly after she told him she was pregnant and the relationship broke down.

From the Human Rights Commission to court

A complaint under the Sex Discrimination Act 1984 (Cth) (SD Act) starts at the Australian Human Rights Commission. The Commission is not a court: it tries to settle the complaint by conciliation, a confidential attempt to reach agreement. If it does not settle, the Commission ends the complaint, and the person then has 60 days from the notice ending it to go to the Federal Court or the Federal Circuit and Family Court, unless the court allows more time (s 46PO(2), Australian Human Rights Commission Act 1986 (Cth)).

After her complaint was ended, Ms Trakimaite filed in court on 21 June 2021. She claimed sexual harassment, discrimination because of her pregnancy, and that the company was liable for Mr Aubertin's conduct. It was heard in January 2023 and decided in November 2024.

The legal test, and how the judge applied it

Section 28A of the SD Act defines sexual harassment. Following the Full Federal Court in Hughes v Hill, the judge applied three elements:

(a) was there a sexual advance, a request for sexual favours or other conduct of a sexual nature; (b) was it unwelcome to her at the time, which turns on her own attitude; and (c) would a reasonable person, looking at all the circumstances, including the relationship between the two people, have anticipated the possibility that she would be offended, humiliated or intimidated?

The first element was easy: Mr Aubertin sought sex at least twice that day. The second was harder, because the relationship was consensual and the judge did not treat his first suggestions as unwelcome. But once she had put him off twice, the banter stopped. The judge found her a straightforward witness, accepted that she felt her job was at risk, and concluded that she had sex that night not because she wanted to but "because she felt she had to".

On the third element, the judge listed the circumstances. She was 31, single, with no family in Australia, on a bridging visa, and earning more at Axe Construction than in her other job. He was 48 and her employer. There was "a disparity of power" which, the judge said, Mr Aubertin appeared willing to exploit, at least on that occasion. A reasonable person would have anticipated the possibility that his messages would intimidate her. The harassment was proved.

Why the company was liable too

Section 106 of the SD Act makes an employer liable for unlawful harassment by its employee or agent done in connection with the employment, unless the employer took all reasonable steps to prevent it. The judge held Axe Construction vicariously liable, meaning legally responsible for another person's conduct, because the harassment involved a threat to her job by the head of her employer. Judgment was entered against both of them jointly.

Her pregnancy claim failed. The judge found Mr Aubertin did end her employment, by 30 December 2020, rejecting his claim that she had resigned. But he found the reason was the breakdown of their personal relationship, not her pregnancy.

Why the damages were modest

She asked for $50,000 in general damages and was awarded $25,000. The judge said Mr Aubertin took advantage of her vulnerable position. But damages compensate for harm caused by the harassment itself. The judge said she did not appear to claim that this one evening caused lasting health effects, and later messages suggested she was not obviously affected by it. The psychologist's report did not separate that evening from the later loss of her job and her pregnancy, which the judge saw as the more significant events. No comparable cases were put to the judge. Aggravated damages, extra damages for the way a wrong is done, were refused. A later decision ordered them to pay her costs and interest.

What this means for you

If someone with power over your job ties sex to that job, a relationship with them does not take away your protection. Messages, and telling someone at the time, can be strong evidence: here, what she told a co-worker that night helped.

For employers, a company is answerable for its own directors. Since December 2022, employers have also had a positive duty to take reasonable and proportionate measures to eliminate sexual harassment, and the Fair Work Commission can now deal with sexual harassment disputes. If you are facing harassment at work, consider getting advice early: the forum and time limits matter.