Jacquie Seemann is a partner at Thomson Geer and an expert in employment and discrimination law. She has been recognised by Best Lawyers since 2014 for employment law. Seemann shares a case that fueled her commitment to helping clients, even if she disagrees with them, and to exploring the meaning and boundaries of law thoroughly.
Many years ago, I worked on a sexual harassment case. A female employee at a café alleged that another employee had sexually harassed her at work. The alleged harasser was physically imposing and had an intellectual disability. My supervising partner and mentor was the late Julian Small, one of Sydney’s pre-eminent employment lawyers. Working with Julian changed my career. He encouraged me to take responsibility, trust my intellect and have my own opinions. I’ve tried to pay this forward by mentoring junior lawyers.
We were acting for the owner of the café chain. He wasn’t convinced that the conduct had happened and even if it had, he asserted that it was contrary to his instruction and so he should not be held responsible. Under the Sex Discrimination Act 1984 (Cth), if an employee unlawfully harasses someone at work, the employer is vicariously liable for that conduct unless it took “all reasonable steps” to prevent the conduct. At the time, there was almost no case law on what this defence meant.
This case was a milestone for me because, while the employer was unhappy with the result, I was satisfied that we had contributed to the development of the law.
Sexual harassment is defined as unwelcome conduct of a sexual nature that a reasonable person should have known might offend, humiliate or intimidate the victim. The alleged conduct was both offensive and intimidating. The harasser may not have understood what he was doing because of his intellectual disability, but intention is irrelevant to harassment. I felt the woman’s story checked out and that sexual harassment had likely occurred.
The business owner asked me what he should do. I said that the claim was credible and that if it went to hearing his company would be held liable. It was not clear what constituted “all reasonable steps”, however the company did not have a written harassment policy or procedure – which I considered was required to satisfy the defence. The business owner had simply explained to his staff that he expected them to behave respectfully towards one another. I encouraged him to settle but he was determined to test the defence in the Australian Human Rights Commission.
An important part of this experience was working with the client, despite disagreeing with him. He had the right to defend his company, and to test the boundaries of the law, and I had an obligation to help him exercise that right. The Commission decided the facts had occurred as alleged and that the company was vicariously liable. The decision clarified that “all reasonable steps” required a written policy and an enforcement mechanism. The Commission awarded the complainant the 2021 equivalent of $50,000. The business owner engaged another firm to appeal but eventually settled out of court.
This case was a milestone for me because, while the employer was unhappy with the result, I was satisfied that we had contributed to the development of the law. Sometimes I represent people with whom I disagree, but generally I’m helping businesses make decisions that affect whole workforces, rather than just individuals.
I also learnt something else from this case. I was pregnant at the time and needed to eat basically every hour. One day I spent eight hours taking witness statements in the café and was never offered food. I learnt that in order to have the relationship with clients that I want, I need to tell them about myself. Since then, I have been quite upfront with clients about my life.