In a decision that Women’s Legal Centre ACT described to Wolters Kluwer as “a landmark”, the first ever civil penalty has been imposed for breaching the workplace sexual harassment provision in the Fair Work Act 2009 (Cth) (FW Act).
Table of contents
- The facts
- The admissions
- Compensation and pecuniary penalty agreed to by the parties
- Whether the compensation and the pecuniary penalty were appropriate
- Significance of the decision
The facts
Maria Mejia arrived in Australia from Colombia in 2022. In 2024, she started working at the Capital City Café-Bar in Canberra. On a bridging visa and waiting for the outcome of a student visa application, she was both young and vulnerable.
Cheenu Kehal owned and operated the café. He sexually harassed Mejia by pinning her to the kitchen sink with his arms. After Kehal offered Mejia money by waving notes in her face, she was able to push him away using her free arm after grabbing the smallest note. At that point, Kehal kissed her without her consent.
After leaving the premises that day, despite Kehal’s apologies, promises that he would never behave like that again and requests that she come back to work, Mejia never returned to the café.
The admissions
Kehal admitted to breaching s 527D of the FW Act, which is a provision that was introduced in 2023 and prohibits sexual harassment in connection with work and can result in civil penalties.
Compensation and pecuniary penalty agreed to by the parties
As a result of Kehal’s admissions regarding the breach of s 527D, the parties agreed that Kehal would pay:
- $50,000 in compensation for hurt and humiliation.
- $9,390 for sexual harassment, which is 50% of the maximum available pecuniary penalty
- $30,610 in additional penalties for other breaches of the FW Act.
All penalties were ordered to be paid directly to the applicant.
Whether the compensation and the pecuniary penalty were appropriate
The only issue that the Federal and Family Circuit needed to consider was whether the compensation and pecuniary penalty were appropriate.
In determining that the amounts agreed by the parties were indeed appropriate, Justice Mansfield noted that: awards of damages are not precedents; the assessment of general damages for non-economic loss is not a science and not readily capable of arithmetic calculation; and each case must be determined on its own facts.
Ultimately, the judge held that the amounts were agreed by the parties were appropriate because:
- They were likely to achieve deterrence.
- Mejia was a vulnerable person and Kehal was a person in authority who sought to leverage that authority in combination with holding out a financial gain.
- Although Kehal expressed remorse in the days following the incident, the judge concluded that it was not about taking responsibility. Rather, it was motivated by keeping the incident a secret, especially from his wife, and the inconvenience of suddenly finding the business short staffed.
- The fact that this was a single incident was irrelevant because sexual harassment is not mitigated by the fact that it took place on a single occasion.
- The damages awarded were in line with similar cases in the anti-discrimination jurisdiction.
Significance of the decision
A spokesperson on behalf of the Women’s Legal Centre ACT’s specialist employment, discrimination and sexual harassment team, who ran the case, told Wolters Kluwer that “[T]he decision demonstrates that the Fair Work jurisdiction can be used not only to obtain compensation, but also impose meaningful penalties on individuals who engage in sexual harassment.”
They spokesperson added, “The fact that the Court awarded 50 per cent of the maximum penalty (even in a case involving a single incident and limited medical evidence) send a clear signal about the seriousness with which this conduct will be treated.”
The case also gives insight into how these provisions operate in practice, particularly following the legislative reforms arising from the Respect@Work inquiry.
Source: Mejia v Capital City Café-Bar