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A former Comcare employee alleged she was sexually harassed and intimidated by the government agency and its lawyers when they included a reference to sex work in court documents.
The former Comcare and Centrelink employee, Gunilla Rindeklev, alleged that by including a witness statement that referenced sex work, the agency and its lawyers unlawfully discriminated her on the basis the conduct amounted to sexual harassment.
The complaint was dismissed by the Australian Human Rights Commission, and Rindeklev turned to the Federal Court for leave to advance the unfair discrimination application.
The allegedly offending statement, provided by a former colleague and partner, claimed Rindeklev sent him a photograph “from when she advertised her services as a sex worker” during 2001 and 2002.
The witness statement was provided by the agency in the Administrative Appeals Tribunal and related to two applications brought by Rindeklev about her work at Centrelink and then Comcare.
While Rindeklev accepted the statement may have been relevant to the first application, she told the Federal Court it was unrelated to the second because there was a “five-year gap between the events the subject of the two applications” and involved “a different agency”.
She claimed that by including the statement in the second matter, Comcare, via its lawyers, “caused her embarrassment, fear, shock, indignation, hurt and confusion” and caused her to withdraw the claims.
Rindeklev alleged in submissions to the Federal Court that the statement was uploaded “with some intent to intimidate” and Comcare, through its lawyers, “encouraged or procured the statement”.
Justice Craig Colvin disagreed, finding the facts Rindeklev relied on do not extend beyond the act of uploading the statement and there is nothing to prove it was done with the intention to intimidate.
“In particular, there is no claim that Comcare (or its lawyers … ) knew that the paragraph in the statement was irrelevant and yet chose to include it,” Justice Colvin said in his written reasons.
“An allegation of that kind would be a serious one because it would allege professional misconduct. It would require a proper basis.”
While Rindeklev may have found the paragraph “unwelcome”, and a reasonable person in Comcare’s position may have anticipated it would cause Rindeklev offence and humiliation, Justice Colvin said these facts alone “do not make the conduct sexual harassment”.
