Woolworths chief Brad Banducci ‘vicariously liable’ for alleged sexual harassment, employee Marc Estonina claims

In a ‘highly unorthodox’ claim, outgoing Woolworths chief Brad Banducci is being personally sued by an employee who says he should be held responsible for sexual harassment and discrimination.

Woolworths Group chief executive Brad Banducci. Picture: NCA NewsWire

Woolworths chief executive Brad Banducci is being personally sued by one of the grocery giant’s shelf stackers, who claims the outgoing CEO should be held vicariously liable for sexual harassment and discrimination.

Marc Estonina filed a claim against Mr Banducci in the Federal Court last month, alleging that while working as a Front End Team Member at Woolworths Caringbah in south Sydney, he was discriminated against on the basis of his sexual orientation and gender.

The claim, which has been described as “highly unorthodox” by one of Australia’s leading workplace and employment lawyers, has already gone to case management, and is due to be heard on August 7 before judge Nicholas Manousaridis.

According to an application filed with the court, Mr Estonina, who started with the company in 2007, claims Mr Banducci acted in contravention of the Corporations Act in making “false policy” proclamations to the public, contradicting a corporate governance statement made to the ASX.

Mr Estonina, who is self-represented, claims Mr Banducci contravened sections of the Fair Work Act that relate to a company’s responsibility to ensure its workers are not discriminated against on the basis of their sexual orientation or age.

He also alleges Mr Banducci should be forced to take responsibility for sexual harassment he experienced while working in the store.

The Australian is not suggesting Mr Banducci personally discriminated against or sexually harassed Mr Estonina, just that the employee is claiming he should be held responsible for the alleged misconduct.

Swaab workplace and employment partner Michael Byrnes told The Australian it is very unusual for a CEO to be personally sued by one of their employees.

“In circumstances like this we have an employee who is a team member in a store, and it’s highly unorthodox and unusual to be suing the CEO personally,” he said. “It’s entirely conventional and reasonable to seek to sue your employer but to bring proceedings individually against the CEO is unorthodox.”

Mr Byrnes said the case was particularly uncommon due to the size of Woolworths.

“When you’re dealing with a CEO who has thousands and thousands of employees, the fact that one of those employees might have or is alleged to have been subject to conduct which breaches the Act doesn’t mean the CEO is therefore also liable for that breach. As a general concept, that seems like a far-fetched proposition,” he said.

“The applicant seems to be claiming that because Brad Banducci didn’t do enough to stop this conduct or perhaps he didn’t enforce a policy or something, therefore he is personally liable.”

Mr Estonina has also filed a case against Woolworths.

The Federal Court matter comes as the latest headache for Mr Banducci following a series of missteps, poorly handled announcements and improperly dismissing former ACCC boss Rod Sims by stamping him as “retired”.

The former Boston Consulting recruit who rose though the ranks to run the $41bn supermarkets giant is due to retire in September, having argued his retirement was long in the planning and predated the furore whipped up recently around Woolworths and the supermarkets allegedly price gouging shoppers to fatten profits.

Mr Banducci, who reportedly pocketed a whopping annual salary of more than $7m in his tenure, will depart after 13 years with Woolworths, eight and a half of them as CEO, to hand over to Amanda Bardwell, the boss of its loyalty and e-commerce division.

Mr Banducci has faced personal attacks over his supermarket’s decision to not sell Australia Day merchandise this year, which he was then forced to explain through a number of uncomfortable interviews and in public advertisements.

In April, he was accused by the Greens-led Senate inquiry into supermarkets of trying to “bulls..t” the committee over the true profitability of the retailer by “cherry-picking” facts, with inquiry chairman Nick McKim warning that Mr Banducci could face jail of up to six months if found in contempt for not answering the question about the Woolworths’s return on equity.

Mr Banducci at the time said the supermarket had acted to offer cheaper groceries, especially under its private label offering, as well as offer tools on its digital platforms to help shoppers plan and budget their shop.

Woolworths has been approached for comment.