Woman allegedly sexually harassed by boss in Sydney restaurant speaks after record payout

Australia Broadcast Center

2 days ago

Warning: This story contains details of sexual harassment some readers may find distressing.
When Biplavi Magar's bus pulled up outside her workplace — she couldn't physically move.
"I couldn't get myself off the bus. I just saw the station go right past by me," she told the ABC.
She was due to start her next shift at Mad Mex in Sydney's Hills District, a place where she alleged she had experienced months of sexual harassment by her manager.
"I was begging myself to get off the bus. I was remembering rent, uni, just to survive the life over here, and … I couldn't."
Ms Magar had moved to Australia from Nepal when she was just 18, wanting to discover herself in a "land of opportunities".
She began working at Mad Mex in 2021, just before turning 21. Almost two years later, the alleged behaviour by her boss, the franchise store owner, Sher Khan, began.
"I just wanted to keep my head down and keep working. If I do my job properly, nothing would happen to me," she said.
"Being a migrant and being a student on top of it … I just wanted to survive this."
Earlier this month, the Federal Court awarded Ms Magar a record $305,000 in damages for sexual harassment, victimisation and aggravated damages, surpassing the previous $268,000 awarded to a jewellery store worker in 2023.
Now she has spoken publicly about the ordeal for the first time to the ABC.
"I wanted to tell my story from my side … instead of someone else telling what I might have thought, or what I might have done."
The case has ramifications beyond the payout for Ms Magar, said her lawyer, Seri Feldman-Gubbay from Redfern Legal Centre.
"This case sends a very important warning to employers that sexual harassment is not only unlawful but will be taken seriously and will result in serious consequences if claims are brought in court," Ms Feldman-Gubbay said.
"Every year we're seeing an upwards trend in the amount of damages that are being awarded in these types of cases."
The payout included $175,000 in damages: $10,000 for victimisation over threats Mr Khan made to launch defamation proceedings against her when she first made a complaint, and aggravated damages of $5,000 arising out of the way in which Mr Khan's case was run at trial.
The now 25-year-old alleged that during her entire employment at the restaurant, "the Group" — which included Mr Khan and three other men that worked at the store — made sexualised remarks about female employees and customers, commenting on their "boobs" and "camel toe", even calling them "skanks" and "whore".
By 2023, Ms Magar alleged Mr Khan began asking her sexualised and intrusive questions, including commenting on her coming to work with a hickey.
"It kind of felt like I was inside a glass box and everybody was dehumanising me and humiliating me for my personal choices," she said in her evidence.
She told the court her employer began sexually harassing her in "various ways" when he would ask her to come with him on jobs in his car, including showing her his "porn iPad" and a bag of sex toys.
"…at some point he asked what my vulva looked like," she said in her evidence.
"Following that, like, he asked me what other colleagues of mine I would f**k, and started naming the colleagues, to which I answered, 'No', to all of them."
She said some of those colleagues were just 13 or 14 years old.
On January 29, another incident took place in his car where he allegedly took a bag of sex toys out of his boot, including dildos and vibrators.
She told the court he touched her inner thighs with the toys asking her how it felt.
"My body was protecting me by being silent and being frozen in one place," she told the ABC.
"There was a lot of begging going inside my mind, like, OK, just want to end this … thing."
Mr Khan, who is almost 62 years old, has denied any wrongdoing, claiming he was impotent and could not be sexually aroused.
Justice Bromwich concluded his physical inability to carry out certain sexual acts did not provide any compelling basis that he did not talk about them.
"Boasting or bravado about fictional sexual exploits is notoriously an aspect of sexual harassment," he said.
The judge said several elements of the arguments put forward by the defendant were "scandalous" and "offensive".
Ms Feldman-Gubbay said the aggravated damages were what made the case so significant.
"In this case, some of the arguments that were made by the other side in defending the claim were ultimately found to be 'offensive' and 'scandalous' and the judge ordered aggravated damages in respect of those arguments," she said.
"Lessons can be learned for lawyers who have to respond to these types of claims in future or the way you defend the claim, does not rely on outdated or antiquated views about how people respond to sexual harassment. Steps must be taken to ensure that the defence doesn't victim blame or further traumatise the victim-survivor."
Ms Magar has not worked for two-and-a-half years, saying in her evidence that Mr Khan's conduct had "profoundly affected all aspects of her life, including her ability to work, socialise and look after herself".
She told the court she felt "humiliated, powerless and helpless" like she was not "human enough".
She told the ABC for up to a year after she stopped working at the restaurant, she was unable to go outside, at times bedridden.
"It was really scary to go outside. It gave me severe social anxiety. It felt as if everybody was sexualising me," she said.
"It took a while for me to reach out to my friends or like my family even, back in Nepal, it was a very hard conversation to have.
"I started having trust issues within my close friends or even my family. Like I didn't really know … if I could trust them with such sensitive and vulnerable information."
In his judgement Justice Bromwich said he did not have any occasion to doubt Ms Magar was telling the truth about Mr Khan's conduct.
"She had experienced a positive relationship with Mr Khan, which was likely to be particularly important for a young woman, with no family support in Australia, who had experienced significant mental health problems in the near past," he said.
"This man was now using his position of authority to engage in unwelcome sexual conduct, and employment by his company was her source of income."
The case is the highest awarded under the Federal Sex Discrimination Act.
However in 2015, a post-office employee in Victoria was awarded more than $330,000 damages under breaches of that state's sexual harassment provisions.
The case is one of the first to involve new sex-based harassment provisions that came in following Respect at Work legislation.
These provisions were created to bridge the gap between sex discrimination and sexual harassment.
Employment lawyer Katie Sweatman said Judge Bromwich's approach, which takes into account the behaviours that contribute or lead to sexual harassment, has changed the way the law is viewed.
"It's one of the most significant payouts seen out of the federal court, and that was really a factor of the vulnerability of the applicant in question, who was a young woman," she said.
"This case is quite significant for legal practitioners because it's the first one that really considers those new provisions in particular detail.
"While Judge Bromwich found that the conduct in question didn't meet the technical definition of sex-based harassment, he did accept that the behaviours that were being complained of did absolutely create an environment which really festered and enabled the sexual harassment to occur.
"And that's a really significant development in how the law is being viewed in this space."
In a statement, a Mad Mex spokesman said the company condemns harassment and was "deeply saddened" that Ms Magar was the subject of such unacceptable behaviour and the matter was immediately investigated by an external law firm.
"Mr Khan is no longer a Mad Mex franchisee."
The lawyer representing Mr Khan told the ABC that his client denied the allegations and considers the judgement to be incorrect. He is considering an appeal.