An accountant who was previously found guilty of historical sexual harassment in the workplace is suing Bunnings for unlawful discrimination after he was sacked when his history came to light.
Claudio Vergara is seeking either his job back or $167,000 in damages, but Hall and Wilcox partner Fay Calderone says it’s an unusual case that will test the boundaries of so-called “social origin”.
It’s a provision in the Fair Work Act that protects workers from discrimination based on social class, socio-occupational category or caste, but could refer more broadly to how someone is regarded in the community.
However, in this instance, Calderone says using the provision in the context of historical misconduct a “big stretch”.
“The explanatory memorandum to the Fair Work Act provides no guidance on what it is intended to be covered by this provision but I don’t think those involved in drafting the legislation would ever have contemplated an application would be made on this basis,” she says.
So what happened? Vergara was working as an accountant at Living and Leisure Australia (LLA) back in 2009 when he was found to have sexually harassed colleague Jenna Ewin four times, which culminated in “unwanted sexual intercourse” while she was intoxicated after a drinks event.
In December 2013, Ewin was awarded $476,000 in damages by the Federal Court in one of Australia’s largest-ever sexual harassment payouts, but Victoria Police did not charge Vergara.
Ewin has before shared her “utter sorrow, grief and mourning” for the person she was before the harassment and incident, as Nine Newspapers reported.
In court documents, Vergara says he feels he “lives with the stigma of the isolated incident found against him” but that there is “no indication of a serial offender so as to disallow [him] rightful and legal employment”.
He had been working for Bunnings for six months, beginning as a store employee before being promoted to pricing co-ordinator in Victoria’s head office.
Vergara claims his dismissal from Bunnings was unfair and a breach of contract because he was sacked without any warning, describing management’s handling as “forcefully and with outright vengeful intent”.
Bunnings’ application to throw out the lawsuit is listed for directions on March 29, and Calderone says it appears to be on the basis that the application would have no reasonable prospects of success.
She agrees. “I am very sceptical about the merits of this application and frankly think it’s brazen!” she says.
Nevertheless, Calderone says, employers should take several important lessons from the case.
“It’s a cautionary tale to employers to do their due diligence when employees commence employment, to ensure their contracts, pre-employment checks and warranties are watertight,” she says.
When it comes to a worker’s criminal record — although in this case, Vergara doesn’t have one — Calderone explains there may be specific protections in state anti-discrimination legislation that employers also should check if that is the reason for not hiring someone, or terminating their employment.
Most crucially, Calderone says employers must keep a record of the reasons for terminating an employee — even during a probation period — because the onus is on them to prove they’re not guilty of a general protections claim brought against them.
That means marrying up KPI expectations with underwhelming performance, for instance, or sales targets with actual sales, or even keeping a record of the job ad description to show how the worker was underperforming.
Bunnings declined to comment on the case to the Australian Financial Review as it is before the courts, however, a spokesperson said the termination of Vergara’s employment occurred during his probationary period.
“We take a great deal of care when considering these types of decisions and we will be defending the claims,” she said.
Emma Elsworthy is Climate Editor at The Mandarin.
