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Star Track was unable to convince a court to toss out allegations that it made it a condition of employment for women workers in warehouses to tolerate the exposure to harassment by male workers.
Star Track Express, a transport and logistics company owned by Australia Post, attempted to have the Federal Court throw out sexual harassment claims pursued by Ananya Bishnoi, who alleged she was sexually harassed by four male workers for almost a year.
To hold Star Track liable for the alleged sexual harassment, Bishnoi has to prove she was an employee or “agent” of the company.
As an alternative to the allegation the male workers were Star Track employees at the time of the harassment, Bishnoi asked the court to find the transport company vicariously liable for their conduct because they performed delivery work as third-party agents of Star Track.
Bishnoi also alleged Star Track unlawfully discriminated against her by imposing a “requirement, condition or practice” that an employee or contract worker who performed work at the warehouse “would have to tolerate exposure to harassment” by the male workers.
“Bishnoi alleges that the requirement, condition or practice had the effect of disadvantaging women and was not reasonable in the circumstances,” the written reasons said.
Star Track said there was no “contractual relationship” between it and the workers because they were each “contracted to provide services to independent contractors or outside hire suppliers” who, in turn, provided the services of drivers to Star Track.
“Star Track submitted that Ms Bishnoi’s claim of indirect discrimination in employment on the ground of sex will similarly fail because she was never employed by Star Track,” the court heard.
Justice Penelope Neskovcin said there were “sufficient facts” for Bishnoi to rely on to allege she and the men were “agents” of Star Track, and so this should at least be resolved at trial.
While summary dismissal was not appropriate, Justice Neskovcin did make an order that parts of Bishnoi’s statement of claim be struck out because it does not “plead the acts, facts or matters” to establish that she and the workers were agents of Star Track.
Bishnoi has been given leave to replead.
The proceedings continue.
RELATED TERMS
According to the Australian Human Rights Commission, discrimination occurs when one individual or group of people is regarded less favourably than another because of their origins or certain personality traits. When a regulation or policy is unfairly applied to everyone yet disadvantages some persons due to a shared personal trait, that is also discrimination.
Harassment is defined as persistent behaviour or acts that intimidate, threaten, or uncomfortably affect other employees at work. Because of anti-discrimination laws and the Fair Work Act of 2009, harassment in Australia is prohibited on the basis of protected characteristics.
