Clarke v Beiler Constructions Pty Ltd as trustee for Fox Trading Trust [2026] FCA 734
KEY TAKEAWAYS:
A recent Federal Court decision highlights the significance of contemporaneous reports in claims of sexual harassment involving ‘he said/she said’ evidence. In this case, contemporaneous reports made to family members tipped the scales in favour of the applicant’s evidence in circumstances where:
- there were no direct witnesses, and the respondent denied the alleged conduct
- the claimant reported the conduct to family members shortly after the alleged conduct occurred (that is, relatively contemporaneously) and prior to any claim or lawsuit being commenced.
The case
The applicant – a female adult apprentice carpenter with a South Australian construction company – commenced proceedings in the Federal Court against her former employer for a variety of alleged contraventions of the Fair Work Act 2009 (Cth), including that her supervisor and another employee had separately engaged in four instances of sexual harassment against her, and that the company was vicariously liable for their conduct.
The applicant was partially successful in her claim, including the claims of sexual harassment by the supervisor being upheld despite the respondent supervisor denying the conduct and, in one case, there being no witnesses to the alleged conduct
The decision
The decision of Justice McDonald in relation to the sexual harassment claims against the supervisor involved a careful assessment of the weight of the available evidence including the respective credibility of the applicant and respondent supervisor.
Ultimately, the decision to uphold the sexual harassment claims against the supervisor rested on the weight given to contemporaneous reports made by the applicant to her family members who also gave evidence at the hearing.
The applicant as a witness: Justice McDonald did not consider the applicant to be a deliberately dishonest witness, but at times had reservations about the reliability of aspects of her evidence. In relation to the claims as a whole (which extended beyond the sexual harassment claims), where her account was not supported by other evidence, the Court was cautious about acting on it alone.
Two allegations against the supervisor were established: In relation to one of the allegations – an explicit request for sexual favours – there were no direct witnesses, but the applicant had separately disclosed the incident to her son and then to her parents.
Justice McDonald described the family disclosures as providing ‘relatively contemporaneous confirmation’ that the conduct had occurred and was unwelcome (in other words, contemporaneous reports).
The disclosures carried significant weight because they were made to different people on two separate occasions while the applicant was still employed, and at a time when making them did not serve to advance any claim or lawsuit. That consistency lent substantial support to the applicant’s account.
The supervisor’s evidence, by contrast, was found to be dishonest. This finding of dishonesty also supported the Court’s conclusion that the second allegation against the supervisor – a crude comment referencing the applicant’s intimate relationship with a colleague – was likewise established. This second claim was established even though there was no corroborating evidence to support the second claim but was based on the Court’s preference for the applicant’s evidence in light of the finding about the respondent’s dishonesty.
Two allegations against a second company employee were not established: In contrast, with respect to two further allegations of sexual harassment against a second employee, the Court found one of the comments (admitted by the employee) was not of a sexual nature and therefore did not constitute sexual harassment. The second allegation was not established on the balance of probabilities in circumstances where the employee denied the allegation, there was no evidence to corroborate either party and in light of the Court’s reservations about the reliability of the applicant’s evidence (although the Court did not find the applicant to be dishonest).
Vicarious liability : The employer was found vicariously liable for the conduct of the supervisor, which amounted to sexual harassment under the Fair Work Act 2009.
Key learnings for employers and investigators
When faced with ‘he said/she said’ allegations that are denied and in circumstances where there were no witnesses, an allegation might still be substantiated based on the following:
- Contemporaneous reports can carry weight: In this case, even in the face of the respondent’s denial, the absence of direct witness evidence and the Court’s reservations about the reliability of the applicant’s evidence, contemporaneous reports of the conduct to family members was sufficient to satisfy the Court on the balance of probabilities that the conduct occurred as alleged.
- Relative credibility of the parties: This decision serves as a reminder that when assessing credibility, the investigator must do so holistically. A complainant’s evidence does not have to be perfect to be accepted, but where it is inconsistent, investigators should look for objective corroboration. Additionally, the evidence of an otherwise honest complainant may still be found to be unreliable where there are inconsistencies or recollections are vague.
More information
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