No Witnesses Doesn’t Mean No Accountability – A Lesson for Employers
Clarke v Beiler Constructions Pty Ltd as trustee for Fox Trading Trust [2026] FCA 734
The Federal Court’s decision in Clarke v Beiler Constructions highlights that workplace sexual harassment can still be substantiated even when no witnesses are present, especially when an employee provides consistent, timely accounts of what occurred.
The case demonstrates the Court’s willingness to hold individuals accountable for sexual harassment and, where appropriate, find employers liable when they fail to meet their legal obligations. Notably, this is the first fully contested Federal Court matter to consider the workplace sexual harassment protections introduced into the Fair Work Act 2009 (Cth) in 2023.
What happened
Ms Clarke commenced fly‑in, fly‑out work with Beiler Constructions in April 2023 as a full-time adult apprentice carpenter. She alleged eight incidents of sexual harassment between April and May 2023.
Early on in her employment, Ms Clarke formed an intimate relationship with one of her co-worker's on site. Her supervisor made unwelcome and intrusive enquiries about the co-worker's genitals, which made her feel humiliated and embarrassed. On another occasion the supervisor asked Ms Clarke for oral sex while they were walking to the mess hall, adding “what happens on the island stays on the island”. Ms Clarke was shocked and offended by the proposition.
Although there were no witnesses to either incident, Ms Clarke told her adult son about what had happened when she got home and then told her parents a short time later.
The supervisor denied the proposition for oral sex entirely and argued that the other incident was merely ‘banter’ which was part of ‘ordinary workplace interactions’, and that Ms Clarke ‘gave as good as she got’.
What the Court found
The Court accepted Ms Clarke’s account, concluding on the balance of probabilities that the incidents occurred as she alleged. Even without witnesses, her prompt disclosure to her son and parents was considered persuasive. The Court also found that the employer was vicariously liable under section 527E of the Fair Work Act, having failed to show it took all reasonable steps to prevent the conduct from occurring.
This decision reinforces that the absence of witnesses does not prevent allegations of sexual harassment from being substantiated. Courts will consider all available evidence, including any early reports, consistency of accounts, and contemporaneous records when assessing credibility.
Key takeaways for employers
Reinforce clear reporting pathways. It is important that clear reporting frameworks are in place. The Court placed strong emphasis on the employee’s timely and consistent disclosures to multiple family members. This type of reporting can be powerful objective evidence in contested matters.
Ensure investigations are thorough and timely. Employers should not assume allegations are unprovable simply because no witnesses were present. Where evidence is contested, employers should ensure a rigorous, well documented investigation, and seek external support where needed.
Take active steps to improve workplace culture. The employer was found liable because it failed to take all reasonable steps to prevent sexual harassment. This is a timely reminder that policies alone are not enough. Employers must demonstrate active prevention and response measures. Employers should provide regular training for employees and supervisors to reinforce expectations around respectful conduct and clarify the limits of informal workplace culture.
Ensure workplace policies and training cover a broad range of behaviours. Policies should clearly define unacceptable behaviour and make explicit that sexualised jokes, banter, or casual remarks are not acceptable, particularly in high-risk industries and workplaces.
