Adverse Action and Sexual Harassment Dispute

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As with many employment disputes there are alternatives to litigation.  Susan Moriarty & Associates work with clients and employers to negotiate a favourable outcome as one means of avoiding the costs associated with litigating disputes.    In saying this, not all disputes are settled by negotiation and may move forward to a conference in the relevant jurisdiction of the: Fair Work Commission, Queensland Industrial Relations Commission (QIRC), Australian Human Rights Commission or Queensland Anti-Discrimination Commission.

This year, Susan Moriarty & Associates has settled a number of legal disputes out of court.   A great example is a recent dispute in which our client alleged sexual harassment in the workplace and made a complaint to that effect to his employer.  The complaint was dismissed by the employer with no further action taken.  Regrettably, matters did not end there.  A temporal link was established between the employee making the complaint and the adverse action the employer took soon after the complaint was made.  That adverse action was as follows, the employee took sick leave because of an injury on a number of occasions, following this the employer called a meeting with the employee without notice and with no agenda outlined. At this meeting, the employee was advised that ‘the relative department were looking at the absence and would guide the manager as to whether the employee would continue with the employer’. Two days later the employee was called into a meeting and handed a termination letter. As the employee was on probation his/her ongoing employment was not confirmed. The reasons for the termination were summarised as, ‘inappropriate professional conduct linked to the usage of sick leave and the notice provided in relation to absences from work’.

In this dispute, the employee had exercised a number of workplace rights such as: the right to make a complaint and the right to take sick leave, and in doing so the employer in its conduct toward our client asserting his/her rights, were adverse and, breached its duty of care to the employee.

This dispute alleging ‘adverse action’ linked to the ‘exercise of a workplace right’ was filed with the Queensland Industrial Relations Commission where a date was set down for a conference.  Fortunately, negotiations proceeded between the parties and a settlement was reached without further litigation. We successfully negotiated a compensation package, a ‘resignation’ instead of ‘termination’, a statement of service and a deed of release.  Signing the deed of release was important to our client because he/she wished to pursue a career in the same industry-which was quite small, the deed of release ensured neither party was to discuss the terms of settlement or dispute with anyone. In concluding the dispute our client emailed our office the following:

“I would like to thank Susan, Brooke, Tara and yourself for every bit of assistance given to me throughout all of this. It certainly hasn’t gone unnoticed, and for everything you have all done for me, I truly am thankful.”

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Leading Employment Lawyers (Employee & Union Representation) – Queensland, 2017

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Susan Moriarty has been named on Doyles, a guide to leading Lawyers and Firms around the world.  Susan was named on the ‘recommended list’ for leading Employment Lawyers (Employees & Union Representation) in Queensland this year. Moreover, Susan is the only  female lawyer on the recommended list.

Doyles Guide gathers information about lawyers and firms from peers, clients and research in each relevant legal field. Doyles also use‘… online peer-based surveys as well as extensive telephone and face to face interviews with clients, peers and relevant industry bodies.’

See the link below to the Doyles guide page.

Leading Employment Lawyers (Employee & Union Representation) – Queensland, 2017

Susan Moriarty – 2015 Winner of the Australian Employment Discrimination Lawyer Award

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Susan Moriarty and Associates has been named by Corp INTL Magazine as its 2015 winner of the Australian Employment Discrimination Lawyer Award.  Corporate INTL Global Awards are a mark of practice excellence from the world’s leading advisors and financiers in an array of countries and continents across the globe.

With over 15 years’ experience in employment law, Susan is honoured to receive this prestigious award for the second year running.

Susan said

Receiving this award is bittersweet.  While I appreciate that convincing the Full Federal Court that a pub could be a workplace is in line with modern work practices, this Award is built on the heroism of my client, Jemma Ewin, who was subjected to serious sexual assault by Vergara on 15 May 2009 and who has not worked as a Chartered Accountant since 2010.   

Although the Federal Court handed down the largest compensation damages award to a sexual harassment victim, Jemma’s harasser has defaulted on paying her the court-ordered compensation. 

It is heart breaking that 5 years after the attack, Jemma has only the feeble comfort of the Court Orders to console her while she battles serious depression.  While Mr Vergara continues to live and work as a Chartered Accountant in Victoria, Jemma is currently living in a camper trailer with her two dogs moving from caravan park to caravan park trying to come to terms with the injustice and searching for a future direction.    

In the year that Rosie Batty is recognised for raising the issue of domestic violence in the home, it is time to also recognise the growing number of women who suffer from sexual violence, misconduct and discrimination in the workplace.

Susan dedicated the award to Jemma and all the women who have suffered sexual violence in their workplace. She said that while the matter is far from over, she remains hopeful that Mr Vergara will respect the decision of the courts.

 

Details of the case can be found on our website (Susanmoriarty.com.au), Facebook page – Susan Moriarty and Associates and Linked-In.