Key takeaways
The Court confirmed that sexual harassment allegations can be substantiated on the balance of probabilities through consistent, corroborated accounts, even in private “he said, she said” scenarios.
Evidence that the applicant reported the conduct to others shortly after the incident (and did so consistently) was highly persuasive in establishing credibility.
Employers can face real vicarious liability risk. This decision reinforces that employers must take proactive, reasonable steps to prevent harassment and failing to do so can result in liability, even where the conduct occurs without witnesses.
The recent decision of Clarke v Beiler Constructions Pty Ltd as trustee for Fox Trading Trust [2026] FCA 734 provides clarity in “he said, she said” disputes, where misconduct occurs in private workplace settings and there are no witnesses to verify the allegations. The decision underscores the willingness of the Federal Court to hold perpetrators accountable for workplace sexual harassment and, where appropriate, impose liability on employers for failing to satisfy their legal obligations.
Interestingly, the decision is the first fully contested Federal Court case to consider the workplace sexual harassment protections introduced into the Fair Work Act 2009 (Cth) (FW Act) in 2023.
Clarke v Beiler Constructions: The background
The Applicant, Ms Clarke, commenced employment with Beiler Constructions Pty Ltd in March 2023 on a ‘fly-in, fly-out’ basis at Kangaroo Island and other sites in and around Adelaide. Between April and May 2023, the Applicant alleged she was subjected to eight separate incidents of sexual harassment. By July 2023, the Applicant had ceased her employment with Beiler Constructions when she sent a text message which stated she was ‘done’.
In December 2023, the Applicant commenced proceedings against Beiler Constructions, its director and three former co-workers as defendants. In the application, the Applicant alleged sex discrimination, instances of sexual harassment and underpayment.
The proposition
One instance of sexual harassment alleged by the Applicant occurred when a Senior Supervisor asked her for a sexual act. This occurred while the Applicant was walking with the Senior Supervisor to the mess hall for a break. When the Applicant did not respond, the Senior Supervisor continued by saying that it was “okay because what happens on the island stays on the island.” No other individuals were present and there were no witnesses to the interaction.
The evidence: The impact of early reporting and consistency in claims
The Applicant’s evidence was detailed and explained both the circumstances of the alleged interaction and the impact it had on her. In response, the Senior Supervisor denied the allegation in its entirety, including the Applicant’s account that the two had walked to the mess hall at the relevant time.
The Applicant relied on the evidence of her adult son, which supported the Applicant’s evidence that the Senior Supervisor propositioned her. The evidence of the Applicant’s adult son was to the effect that shortly after her return from Kangaroo Island, she told him about the incident.
The Applicant’s mother and father also gave evidence to the same effect, that shortly after the Applicant returned from Kangaroo Island, she told her parents that a guy she worked with had propositioned her with a sexual act.
The evidence of the Applicant’s adult son was not challenged in any respect. Justice McDonald considered it highly improbable that the Applicant would have told her son of the alleged conduct if it the incident did not occur. His Honour also found that the consistency between the Applicant’s account to her parents and the account she provided to her adult son tends to support the reliability of her version of events.
Who did the Court believe?
The Respondents submitted that, just because the Applicant told her family members something, that doesn't mean that it is true. Justice McDonald noted that would be a logical proposition. However, His Honour found the fact that the Applicant separately told her son and parents that the Senior Supervisor had propositioned her as far more consistent with the incident being true.
His Honour considered that, taking into account all the evidence, it is significantly more probable and was satisfied on the balance of probabilities that the Senior Supervisor did ask the Applicant for a sexual act. His Honour went on further to confirm that directly asking someone for a sexual act constitutes a sexual advance and a request for sexual favours.
The decision
The Court declared that the Senior Supervisor contravened section 527D of the FW Act by sexually harassing the Applicant on two occasions.
The Court also held that the employer was vicariously liable for the sexual harassment committed by the Senior Supervisor (pursuant to s 527E of the FW Act), as it failed to demonstrate that it took all reasonable steps to prevent the conduct.
Implications for workplace investigations and risk management
The decision is a bold position and clarifies that the absence of witnesses is not invariably a barrier to accountability. It is clear that the Court will consider all evidence, including information relating to the reporting of misconduct post-incident, in determining whether an allegation may be substantiated (on the balance of probabilities). Particularly, it is important to also note that:
- credibility will not be assessed solely from demeanour; and
- Courts may focus on objective evidence, consistency of accounts, and contemporaneous records when determining disputed facts.
The decision serves as a clear reminder that misconduct in private settings is not beyond the reach of the law.
Employers cannot assume that the absence of witnesses will make such conduct impossible to prove, particularly where the surrounding evidence supports the complainant's account. In circumstances where there is conflicting evidence relating to allegations of workplace misconduct, we recommend for employers to ensure they undertake a rigorous investigation or otherwise engage legal assistance to ensure appropriate action is undertaken.