Homophobic Harassment At Storage Facility Leads To $116,000 Court Award

In what legal commentators have described as a “new frontier” in workplace sexual harassment law, a Queensland storage facility worker has been awarded $116,000 in compensation and penalties after the Federal Circuit and Family Court of Australia found he was subjected to repeated homophobic and sexual harassment by a contractor and a customer at his workplace.

The court heard the worker, employed at a Storage King facility in Queensland, was subjected to months of abuse including homophobic slurs, being referred to as “the gay boy” and “poof” among more explicit remarks, repeated comments questioning his sexuality, sexually explicit remarks about his body and behaviour, and incidents of physical intimidation, including being shoved, bumped and crowded while working.

Judge Salvatore Vasta described the conduct as “a very serious example of sexual harassment at work” and said it was “repeated, deliberate and humiliating”. He found the behaviour “went well beyond mere workplace banter” and created “an intimidating, hostile and offensive workplace environment”.

The court heard the worker reported the conduct to his employer and provided recordings of some interactions. He later alleged his complaints were not adequately addressed and that he subsequently lost his job.

In his judgment, Judge Vasta said protections against sexual harassment extended beyond direct employees, stating: “The prohibition on sexual harassment is not confined to fellow employees,” and that the Fair Work Act applied to “customers, contractors and other persons connected with the workplace”.

Vasta said a Fair Work Act provision aimed at stamping out sexual harassment in connection with work covered all types of perpetrators. The identity of the perpetrator “really does not matter”.

The Fair Work Act would protect a waitress harassed by a patron at a restaurant, Vasta said, “because the waitress would be a worker and the harassment occurred in connection with her being a worker”.

The court ordered contractor Jacob Marshall and customer Troy Mitchell to jointly pay $90,000 in compensation, along with separate civil penalties of $13,000 each. Neither respondent participated in the proceedings.

Senior employment lawyer Yuva Harish, acting principal solicitor of Sydney’s Inner City Legal Centre, told the Sydney Morning Herald that the decision was an exciting development in a “largely untested” area of the law.

“This kind of behaviour should have left the workplace decades ago and was never appropriate,” she said. “It shines a light onto modern-day workplaces and the experiences of young and queer workers.”