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Would a recent NSW discrimination case had a different outcome under the federal jurisdiction?

The recent NSW discrimination case of Vafa v Holdsworth; Vafa v University of Newcastle (2022) has highlighted the importance of reform in the area of sex discrimination, and sends a message to employers regarding the impact of proposed amendments to federal sex discrimination laws.

In the May 2022 decision, the NSW Civil and Administrative Tribunal considered whether conduct occurring between an academic and his student amounted to sexual harassment.

Allegations of sexual harassment

Professor Holdsworth was Ms Vafa’s supervisor during her PhD from August 2015 to November 2017. Ms Vafa alleged that during his supervision of her PhD, Professor Holdsworth sexually harassed her.

Ms Vafa made a number of allegations of sexual harassment, including that:

  • during their weekly meetings, Professor Holdsworth would frequently touch her on the shoulders, back or hands;
  • on multiple occasions, he hugged her tightly and kissed her on the cheek without her permission;
  • on various occasions, he would enter her office from behind in a ‘sneaky manner’ and alert her to his presence by putting his hand on her shoulder;
  • he suggested, and was insistent upon, sharing accommodation with her for the duration of a research trip to Ireland;
  • while in Ireland, he shared photos on Facebook of her without her permission, and shared videos and communicated with her over Facebook Messenger, which she did not consider appropriate; and
  • when a fellow student asked Professor Holdsworth if he and Ms Vafa shared accommodation while in Ireland, he said, “my wife would have killed me”, which amounted to sexual harassment.

Professor Holdsworth admitted that on occasion he did some of these things but denied rubbing Ms Vafa’s back or buttocks. He also denied Ms Vafa’s claim that she repeatedly told him that she felt uncomfortable with, and objected to, any of his conduct. He claimed that at no time before ceasing to be her supervisor did Ms Vafa indicate that his conduct was unwelcome or inappropriate.

An independent investigation undertaken by the University of Newcastle had found the allegations were not proven.

Assessing whether sexual harassment occurred

In assessing each allegation, the Tribunal considered that the threshold of sexual harassment under the Anti-Discrimination Act 1977 (NSW) required a finding that:

  • the alleged conduct occurred;
  • the conduct was unwelcome (which is a subjective test of Ms Vafa’s state of mind when the conduct occurred);
  • objectively, a reasonable person having regard to all of the circumstances would have:
    • anticipated that Ms Vafa would be offended, humiliated or intimidated; and
    • considered the conduct was sexual in nature.

All the allegations of hugging, kissing on the cheek, and poking were found to have occurred and to be unwelcome by Ms Vafa. However, the Tribunal did not consider the conduct, in the circumstances, to be objectively sexual in nature. As such, those claims were dismissed.

However, the allegation in relation to the statement by Professor Holdsworth that, “my wife would have killed me” if he and Ms Vafa had shared accommodation was found to be sexual harassment. The Tribunal found that Ms Vafa would have considered the conduct unwelcome, and a reasonable person would have anticipated Ms Vafa would be offended. The Tribunal found that the comment was sexual in nature as “the implication of the comment … is clear: that had he shared accommodation with Ms Vafa, Professor Holdsworth’s wife would have suspected that he and Ms Vafa were sexually intimate”.

The matter has been adjourned pending further orders regarding this finding of sexual harassment.

Impact of new section 28AA in the Sex Discrimination Act 1984 (Cth)

Although the case was brought by Ms Vafa under state laws, if a similar case was commenced in the federal jurisdiction, it may have resulted in a different outcome as a result of recent changes to sexual harassment laws introduced last year by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.

The Sex Discrimination 1984 (Cth) Act (SD Act) prohibits sexual harassment (section 28A) and sex-based discrimination (section 5). The new prohibition under section 28AA of the SD Act against harassment on the ground of sex is intended to capture harassing conduct that is seriously demeaning or engaged in by reason of someone’s sex, but not necessarily sexual. This widening definition may have resulted in a different outcome for Ms Vafa.

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