Poeniatowska V Hickinbotham Case Study

Introduction

Poniatowska v Hickinbotham [2009] FCA 680 and the unsuccessful appeal against the decision (Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92) are remarkable cases concerning various allegations of conduct constituting sexual harassment (SH) and unlawful discrimination on grounds of sex. The reasoning of Mansfield at first instance (which is accepted by the judges at appeal) adequately addresses issues of credibility, standard of workplace policies regarding SH and discrimination, and etc. The aim of this research paper is to assess the court’s approach to the conduct alleged to constitute sexual harassment, respondent’s response to the allegations, and the assessment of damages. It will be viewed in light of the broader issues raised by the scholars regarding sexual harassment and discrimination and the Sex Discrimination Act (the SD Act).

1. Court’s view on the conduct alleged to constitute sexual harassment

In an express recognition that every sexual harassment case is likely to be profoundly circumstance-driven, Mansfield J appropriately focused on assessing the credibility of the witness, whether the alleged event did in fact occur, and whether it occurred in the way which she alleged it occurred, with a range of evidence before him. Some of the alleged conducts were directly denied: with regard to an April 2005 allegation concerning A Hickinbotham, after assessing the ‘reasonable’ time period in which the incident should have been reported given the surrounding circumstances (e.g. Poniatowska’s position at work), the judge rejected her claim on ground of the significant delay in reporting the incident. Reasonableness was again considered in dealing with a September 2005 allegation concernin...

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...d to the appellant , yet the defendant company itself had no appropriate measures or policy for dealing with the sexual harassment.

Conclusion

The Poniatowska case was indeed a demonstration of not infrequent sexual harassment and discrimination at workplace in Australia. As the findings indicated, the appellant was forced to accept an inappropriately robust working environment and endure various unacceptable conducts as part of her job. In the court proceedings, the judges took reasonably adequate approach, taking into consideration of the broader issues surrounding sexual harassment and discrimination in reaching its decision in favour of the claimant. Great emphasis was put on the appropriateness of the measures taken by the employer to regulate the conduct of employees and address the complaints. The case provides guidance to the employers in that regard.