Employers on notice to prevent sexual harassment after record win for worker
CW: this post contains discussion of sexual harassment and assault. Support is available at 1800RESPECT (1800 737 732) - 1800respect.org.au.
A young migrant worker employed casually as a supervisor at a Mad Mex franchise has been awarded compensation after enduring repeated sexual harassment. The result represents a record payout and sends both a powerful message to workplace leaders about their positive duty to eliminate sexual harassment and a clear warning to perpetrators who try to weaponise the law to silence victims.
The Court found that a culture existed at the workplace that routinely normalised sexist behaviour and created an environment where sexist conduct thrived. Routine comments and jokes about female staff and customers were accepted behaviour.
NSW Mad Mex franchise owner Sonny Khan, the principal and senior employee of Mexicali Enterprises Pty Ltd, was found to have sexually harassed the young woman in 2023 by making repeated sexual comments about her and other people (customers, other staff members), isolated her in his car and showed her pornographic content, to name a few.
Mad Mex Shopfront Melbourne Central
The Judge found that senior workers, including Mr Khan, "fostered a workplace culture that was disinterested in preventing sexist conduct from taking place and was instead tolerant, or even conducive to its continuation", and that the culture at that workplace tolerated overt and outspoken sexist and boorish behaviour, which can normalise sexualised behaviour towards women and foster an escalation into worse behaviour, such as a progression into sexual harassment.
After the young worker complained about the conduct Mr Khan embarked on a campaign of victimisation, assisted by his lawyers. They threatened the young woman twice with formal concerns notices, precursors to defamation threats. The Court found that the concerns notices were sent to pressure Ms Magar into backing down which amounted to unlawful victimisation.
In Court Mr Khan’s lawyers questioned her perception of reality, and argument the Judge called “scandalous and entirely unsupported” and “a highly offensive argument”.
The Court awarded the young worker $160,000 in general damages, a record for a sexual harassment case, surpassing the previous record of $140,000. She was additionally awarded aggravated damages, taking the total to $305,000, in part because of the way Mr Khan ran his case and threatened her with defamation.
The judge also found that there were aspects of the worker’s identity that compounded the effects of the harassment. She was 22 years old (he was nearly three times her age), a migrant worker who had recently arrived in Australia, with no family in the country, and had a history of mental health problems which the owner was aware of. All of these factors created a wider power imbalance and made her more vulnerable to harm.
As well as resulting in the highest sexual harassment payout ever ordered in Australia, this case highlights the heightened vulnerability of migrant women, the cost of ignoring workplace warning signs, and the dangerous momentum of unchecked power.
The law is very clear. Since 2022, every employer, regardless of the size of their business, has a positive duty under the Sex Discrimination Act to eliminate sexual harassment, sex-based discrimination and hostile work environments.
That means prevention and responding effectively. That means acting on the full spectrum of sexually harassing behaviour, including everyday sexism. That means building safe and accessible pathways to speak up.
This young worker bravely coming forward has shown how the Sex Discrimination Act can be used in practice and empowers other young women from migrant backgrounds to speak out against harassment and abuse.
Cases are being prosecuted under the Victorian OHS Act
Employers should also be on notice that they may be prosecuted under the Occupational Health and Safety Act for failing to provide a safe workplace free from sexual harassment. Union members fought hard to have sexual harassment and gender-based violence recognised and treated as an OHS issue, like other physical and psychosocial risks.
In October of 2023, a boss of two hospital coffee shops was found to have sexually harassed staff on numerous occasions, and another male worker had also groped a co-worker. The boss and the companies that ran the coffee shops were fined a total of $290,000 by WorkSafe for failing to meet their legal obligations to provide a safe workplace for staff, including a lack of reporting procedures or handling processes for cases of gendered violence.
Similarly, WorkSafe Victoria has charged a holiday park company for failing to provide a safe workplace, leading to the sexual harassment of an employee. Beechworth Holiday Park and its director were charged for failing to implement training, policies and procedures, and investigating and preventing inappropriate behaviour. This follows other cases against employers of young women apprentices.
We are seeing a reckoning when it comes to consequences for sexual harassment and gender-based violence in workplaces. Bosses are learning that they cannot get away with failing to keep workers safe. For more information, see the Safety Net article.
If you need assistance or support
Every worker in Australia can join the union for their industry – and together we do remarkable things.
The Young Workers Centre offers training about your rights and assistance with workplace issues to workers under 30 years of age.
MWC offers support and training to migrant workers (including in several languages other than English), and also functions as a Community Legal Centre to offer free and confidential legal assistance to migrant workers.
Contact ph: 03 7009 6710
If you have a question about health and safety at work, Ask Renata.
Contact: speak to an advisor: 1800 136 089, to report an emergency: 13 23 60
The national domestic family and sexual violence hotline offering information, counselling and support services.
Contact: 1800 737 732
A national charity providing 24 hour mental crisis support and suicide prevention services.
Contact: 13 11 14