Mad Mex manager ordered to pay $305k for sexual harassment, victimisation

The Federal Court has granted a substantial remedy for a former employee at Mad Mex who was sexually harassed by her manager.

Mexican fast-food franchisee Mad Mex has been implicated in a recent sexual harassment case carried out in the Federal Court where a former employee claimed that she was sexually harassed, harassed on the grounds of sex, and victimised for complaining of such conduct by her manager, Sher Khan, also known as Sonny.

In her original court filing, the employee alleged that Khan – who denied any wrongdoing – made repeated sexualised comments, showed her pornographic videos, and rubbed her inner thigh with a sex toy.

Federal Court judge Robert Bromwich, who oversaw the case, went through the employees’ allegations, as she claimed she was harassed throughout her entire employment period from September 2021 to February 2023.

Of these allegations, a hickey incident and incidents that occurred in or around Khan’s vehicle proved to be significant to Bromwich’s findings.

According to the employee’s evidence, on 12 January 2023 she arrived to work with a hickey on her neck and was met with both ridicule and intrusive questions from Khan, who asked if she got “banged” while pointing to the hickey.

He later drew the attention of other colleagues to the hickey saying words to the effect of “did you see [her] hickey … I think she enjoyed the night. What do you think…”.

“It kind of felt like I was inside a glass box and everybody was dehumanising me and humiliating me for my personal choices,” said the employee.

Bromwich found this allegation to be substantiated despite Khan denying the situation occurred, noting that there is no doubt the incident left the employee “offended and humiliated” and constituted “two types of sexual harassment”.

Following this, the employee made further allegations that occurred either in or near Khan’s car. According to her evidence, on Sunday shifts she was often asked to accompany Khan to Coles to help purchase items that needed restocking, leaving the pair only in the company of each other.

On 15 January 2023, Khan asked if the employee had “experimented in college” pertaining to “girl on girl” intercourse. The employee responded “no” to which Khan said she should “loosen up” and “experiment”.

A week later, while accompanying Khan to Coles, the employee claimed that Khan took out an iPad saying, “This is my porn iPad,” and proceeded to show the employee pornographic images, and played a pornographic video in front of her.

He then proceeded to ask her which of her colleagues she would have sexual intercourse with, reciting different names to which the employee replied “no” to each one he proposed.

On 29 January 2023, the employee was in Khan’s vehicle when he retrieved a Coles bag containing sex toys, dildos, and vibrators. He began displaying these items to the employee who claimed she “just wanted to vomit”.

Khan continued, asking pervasive questions about sexual topics such as masturbation, and asked the employee if she was sexually aroused after viewing the items. He proceeded to touch the employee on her inner thighs with a sex toy, asking how that made her feel.

The employee expressed that during these events she was “frozen” in her seat, wanting to “run away” but her body was unresponsive.

Khan denied ever showing the employee pornographic videos or pictures, denied asking her questions of a sexual nature, and denied having ever owned an iPad or sex toys.

In attempting to claim that he committed no wrongdoing during these instances, Khan’s lawyers claimed that the employee may have “genuinely perceived the conduct and conversations as having taken place, they may have been the product of false beliefs arising out of distorted perceptions of reality”.

According to Bromwich, although Khan did not go as far as labelling the employee’s recounts as “delusions”, it was “at least hinted at”.

The employee first contacted the Mad Mex people and culture manager on 18 April 2023, and then proceeded with her allegations against Khan. In response, Khan’s lawyers sent the employee a concerns notice, hinting at a defamation action, claiming that her allegations were defamatory in nature, requesting monetary compensation and an apology.

Bromwich described this action as “a dangerous course”.

“A person in Khan’s position, and any lawyer advising such a person, should recognise that resort to threats of defamation action for complaining about sexual harassment is a dangerous course unless comfortably satisfied that the allegations are baseless.”

Further in his defence, Khan expressed that due to his age and medical conditions, he was “impotent”, rendering the behaviour and conduct alleged by the employee to be unlikely.

However, Bromwich disagreed with this assertion as the majority of the allegations were verbally carried out.

“Physical inability to carry out certain sexual acts does not necessarily, and does not in this case, provide any compelling basis for concluding that he did not talk about them as though they had really occurred,” said Bromwich.

“The conduct alleged was mostly verbal, and to the extent it was said to have been physical in nature, it was neither protracted nor strenuous.”

Khan also asserted that the employee had previously mentioned that she “liked chaos in her life” and had “been shown pornography before” making her less likely to be offended by Khan’s actions.

Bromwich found this to be “scandalous, and entirely unsupported”.

“More importantly, there was no basis for an argument that because a person had been exposed to pornography, or liked chaos, that they would not be hurt or offended by a person in a position of power over them showing them pornography. It was a highly offensive argument to put.”

Overall, Bromwich found that the employee was sexually harassed by Khan and furthermore victimised for complaining about his unlawful conduct.

“In relation to the hickey incident and at least four of the five car incidents, I find that the conduct of Khan constituted sexual harassment.”

The employee was awarded $305,000 to be paid by Khan, comprising $160,000 for sexual harassment, $10,000 for victimisation, and $5,000 in aggravated damages, and further $130,000 for past and further economic loss.

Senior solicitor at Redfern Legal Centre – who represented the employee – Seri Feldman-Gubbay, described the result as a “landmark decision”.

“No matter your income, race, disability, or visa status, if you are working in Australia, you have the right to a safe workplace, free from discrimination and harassment.

“This landmark decision should act as a warning to employers: if you tolerate sexist workplace cultures, target vulnerable workers for sexual harassment, or threaten defamation proceedings against employees who speak up about sexual harassment, you will face the most serious consequences.

“Our client is a brave woman – despite legal intimidation at every step of this proceeding, she persisted.”