Her harassment claim failed on proof, but her wage claim won big

What happened

Ms Mathieson started work on 13 March 2019 as a food and beverage supervisor at the Drift Bar & Restaurant in Cronulla, run by McKenzie Matteson Pty Ltd. She said she worked about 50 hours a week, often finishing at 4:00 am and coming back the same day. She reported directly to the company's director, Mr Matteson, who made all decisions about her job.

Her employment ended on 27 November 2019, when the director sent her a text message asking for her keys and uniforms back. The court found that this text was the dismissal.

She then brought two cases against the company and the director. One was for unpaid wages and other entitlements under the Fair Work Act 2009 (Cth). The other was for sexual harassment under the Sex Discrimination Act 1984 (Cth), brought under s 46PO of the Australian Human Rights Commission Act 1986 (Cth), the section that lets a person go to court after the Australian Human Rights Commission has terminated their complaint. A co-worker brought similar claims against the same business, and the judge heard them together.

The sexual harassment claim

Ms Mathieson described many incidents. She said the director repeatedly asked her to dinner, made comments about her body, stood too close to her and touched her without her consent, including once when he drove her home after a late shift. The judge said this evidence, if accepted, was capable of supporting a finding of sexual harassment.

The company and the director filed defences, but their lawyer stopped acting and they did not appear at the hearing. So her evidence was not contested and she was not cross-examined. Even so, the judge said that did not mean he was bound to accept it. Under s 140 of the Evidence Act 1995 (Cth), she had to prove her case on the balance of probabilities, and the more serious the allegation, the stronger the proof the court needs. Following the High Court's decision in Briginshaw v Briginshaw, the judge had to feel "an actual persuasion" that the incidents happened.

Why the court was not persuaded

The incidents rested wholly on Ms Mathieson's uncorroborated account: no witness and no document backed them up. That alone would not have defeated the claim. The problem was that much of her other evidence did not hold up when checked against the documents of the time.

For example, she said she complained every week about not getting payslips, but when she asked for payslips by text, the director simply replied that he would send them, which the judge said showed he was willing to provide payslips on request. She said she complained that her group certificate was wrong, but the document she attached related to a different employer altogether. The judge said that error raised "significant doubts" about her commitment to give truthful, accurate and complete evidence. She described abusive responses when her children were sick, but the text messages about those absences showed some frustration and no abuse.

Weighing all of this, and the gravity of the allegations, the judge said he was "unable to feel any such actual persuasion" and dismissed the harassment case. That is a finding that the claim was not proved, not a finding about what did or did not happen at the bar.

The wage claim

The wage claim was a different story. Her work was covered by the Restaurant Industry Award 2010, and the hours she worked were set out in a schedule the company admitted was correct. Applying the award rates to those admitted hours showed an underpayment of $17,402.22. The company also made no superannuation contributions, did not issue payslips as it should, and did not give her the 10-hour break between shifts the award requires.

Under s 45 of the Fair Work Act, breaching a modern award is a contravention, and the director was personally liable because he was "involved" in it under s 550. The court ordered the company and the director to pay her $20,188.52 (the underpayment plus interest) and $4,837.27 into her super fund. It imposed penalties of $200,000 on the company and $40,000 on the director, which also covered the same breaches against her co-worker, and ordered that most of them be paid to Ms Mathieson: $168,421 from the company and $33,684.20 from the director.

Not everything succeeded. A claim for unpaid annual leave failed because she gave no evidence of what she had been paid for it. Her claim under s 340, that she was sacked for complaining, also failed: the judge was satisfied the director dismissed her because he believed she had given drinks away without his authority and believed or suspected that she had lied about a theft she reported at the bar.

What this means for you

This case shows how much depends on evidence. The claim backed by an admitted record of hours won; the claim that rested only on memory did not, even with no one on the other side. If you are being harassed at work, consider keeping a private, dated record of each incident, telling someone you trust at the time, keeping texts and emails, and making complaints in writing. The same goes for pay: keep your own record of the hours you work and any payslips you receive.

Sexual harassment complaints usually go first to the Australian Human Rights Commission, the Fair Work Commission or, in Western Australia, the Equal Opportunity Commission, and time limits apply, so it is worth getting advice early.