In a decision made under the Fair Work Commission's (FWC) new anti-sexual-harassment jurisdiction, a deputy president has found conduct that occurred while two workers were driving to and from work, and on out-of-hours phone calls, occurred "at work".  In Perth, FWC Deputy President Abbey Beaumont said harassing conduct "cannot remain impervious to this jurisdiction" just because it occurs while a worker is not performing work or in the workplace.  But she ultimately dismissed the claim at hand, after finding the claimant had left her job, at The Riverton Bar and Grill, and was no longer at risk of being sexually harassed by the perpetrator, her manager.

The claimant, a casual cook, applied for FWC orders against the venue's head chef (her manager), claiming he must be "fired from his work so that nobody faces this kind of bullying and sexual harassment in future" The FWC's anti-bullying jurisdiction was expanded last November to allow it to issue orders to stop workplace sexual harassment This was recommended by the Australian Human Rights Commission's national inquiry into sexual harassment in workplaces.   In the current case, Deputy President Beaumont heard that a few months after the female worker started working at the venue in July 2021, the head chef began driving her to and from work.

On one occasion, when they were in the manager's car in the restaurant car park, the manager persistently asked her to be his girlfriend.  On another occasion, after the manager picked her up to take her to work, he asked her to have sex with him and when she refused he demanded she justify why she did not want to.  One morning, on a non-work day, he called her at home and badgered her to go on an outing with him. When she refused he repeatedly pressured  her and suggested she make excuses for not attending her training college that day.  The worker recorded these conversations on her phone, and Deputy President Beaumont allowed her to submit the recordings, finding it was "palpably evident" from them that she was not receptive to any of the manager's suggestions.  As a casual employee who spoke English as a second language, the worker was in a vulnerable and subordinate position where she depended on the manager's exercise of discretion to obtain work, she found.

The manager's conduct was clearly unwelcomed, and a reasonable person would have anticipated that it would offend and intimidate the worker, making it sexual harassment within the meaning of the Commonwealth Sex Discrimination Act 1984, she ruled.  Deputy President Beaumont rejected the employer's claim that the interactions between the worker and the manager were not work-related because they all occurred outside of the workplace.  Being "at work" was not limited to the confines of the physical workplace, and the language in the bullying and harassment provisions of the Commonwealth Fair Work Act 2009 emphasised "that the jurisdiction extends beyond the employment relationship", she found.

Whether the manager had "offered the lift or imposed the lift upon the worker, or alternatively acceded to her request for a lift, it was his decision to drive her to work", Deputy President Beaumont noted.  "He took that decision as her manager, and as an authority figure within the business in which they both worked," she said.  "It is therefore not a long bow to draw that the activity engaged in, that is the drive to work, was permitted by him and therefore the respondents business, and as such occurred at a time where for the purpose of this jurisdiction the two were 'at work'."  Further, the manager's "authority or licence to contact the worker outside of working hours arose because of the position he held", and the worker felt obliged to answer to secure shifts, Deputy President Beaumont added.  She found the alleged behaviour was workplace sexual harassment, but the worker's application must be dismissed because the employment relationship had ended.