‘What does your vulva look like?’: $305K sexual harassment payout
A young migrant woman has been awarded $305,000 for the sexual harassment she experienced from senior male colleagues at a Sydney Mad Mex store. The victim alleged she was shown pornography on a “porn iPad” and asked “what my vulva looked like.” She was also shown her manager’s sex toys and asked if she would have sex with adult and underage colleagues.
She was also victimised when she made a complaint to Mad Mex’s HR department. The manager’s lawyers twice threatened to bring defamation proceedings against her, demanding monetary compensation and an apology.
Landmark ruling delivered one of the biggest payouts for sexual harassment
This Federal Court of Australia case – Magar v Khan [2025] – was the first judicial consideration of new provisions against sexual harassment and harassment on the ground of sex under the Sex Discrimination Act 1984 (Cth). These came into effect in late 2022.
The provisions require employers to take proactive and meaningful steps to prevent sexual harassment from occurring at first instance. Let’s look at how this landmark case unfolded.
Vulnerable migrant worker wins huge sexually harassment payout
Twenty-three-year-old Nepalese woman Biplavi Jarga Magar came to Australia on a student visa in 2021. In September of that year, she began working as a shift supervisor at a Mad Mex franchise in Sydney’s Hills District. The franchise, Mexicali Enterprises, was owned and operated by Mr Sher Khan, who was also the senior employee. Ms Magar lacked family support in Australia; a vulnerability later highlighted by the Federal Court as a factor known to Mr Khan.
In addition to Mr Khan, who was aged in his early sixties, Ms Magar worked alongside two other senior male colleagues. The trio were collectively referred to in Court proceedings as the ‘Group.’ Ms Magar alleged that throughout her employment, the workplace was pervaded by a toxic culture of sexist behaviour from the Group.
‘Skanks and whores’: Sexual harassment in toxic environment
The sexual harassment from the Group included the regular use of sexualised and sexually explicit language in relation to female employees and customers. They would comment on women’s breasts, bottoms and clothing. In one incident, one of the colleagues referred to a customer’s “camel-toe.” The Group would also call women “skanks” or “whores” and make explicit jokes, such as discussing a former employee’s “imagined masturbation habits.”
Ms Magar told the Federal Court that she felt the need to be “easy to work with.” She reluctantly tolerated this environment because she needed her income as a student migrant with no family support in Australia.
‘Did you see Biplavi’s hickey?’ Manager humiliated worker
The conduct escalated into direct and severe sexual harassment by Mr Khan towards Ms Magar over a one-month period. This took place between mid-January and mid-February 2023. The first instance of sexual harassment from Mr Khan took place when Ms Magar came to work with what she described to the Court as a hickey. She claimed that Mr Khan pointed at the hickey and asked if she had enjoyed the night before.
He also asked who she had met and if she got “banged.” Ms Magar said she was “shocked” by the question. Later that day, Mr Khan came out of the office to point out the hickey to new shift members, saying “Did you see … Biplavi’s hickey? Like, I think she enjoyed the night. What do you think, kind of?”
Shown ‘porn iPad’ while alone in his car
Following this incident, Ms Magar alleged the sexual harassment became “unwelcome sexual conduct” that occurred repeatedly. This often took place when she was alone with Mr Khan when they were in or near his car. Ms Magar had been in Mr Khan’s car as they would conduct supply runs on Sundays.
During these ‘Car Incidents’ as the Court described them, Mr Khan showed her pornographic videos and screenshots on his self-described ‘porn iPad.’ He also asked Ms Magar a series of highly intrusive and explicit questions about her private life. He asked her “what my vulva looked like” and asked her about how she masturbated. Mr Khan also suggested they attend a massage parlour or a hotel together to “watch pornography together.”
‘Would you f**k Colby?’: Asked if she would have sex with underage colleagues
Mr Khan further questioned her on her sexual history, asking if she had ever had sex with a woman or watched lesbian pornography. When she replied negatively, he suggested she should “loosen up a bit” and experiment.
Mr Khan also made repeated sexual propositions and remarks about other people. He asked Ms Magar which colleagues she would like to “f**k,” specifically naming both adult and underage staff as young as 13 years old. He also spoke to her about his own personal life, including talking about having sex with his ex-wife.
Exposed to bag of sex toys, left ‘powerless’ by sexual harassment
The harassment also involved inappropriate contact with sexual items. Ms Magar alleged that during the Car Incidents, Mr Khan took a bag of his sex toys, including dildos and vibrators, out of his boot. He then “touched one of them on her thigh” and asked her how it felt. Ms Magar later described her reaction to the contact. She said that while in the car “my body was protecting me by being silent and being frozen in one place.”
She said that there was “a lot of begging going inside my mind,” with her thoughts focusing on how she could just “end this… thing.” Ms Magar stated she felt “humiliated, powerless and helpless” and like she was not “human enough.” She described how on 17 February 2023 she was unable to physically get off the bus to attend her shift. She ceased her employment at Mexicali that day.
Victimised following sexual harassment complaint
The events following Ms Magar’s departure from Mexicali quickly moved into a formal complaint process. Ms Magar first complained about Mr Khan on 18 April 2023, sending a LinkedIn message to Mad Mex’s people and culture manager. She later had phone and videoconference discussions with the manager and another HR representative.
During these discussions, Ms Magar was assured by Mad Mex that the complaints would be kept confidential. They promised that her identity would remain anonymous throughout the investigation unless absolutely necessary.
Investigation led to warning of franchise termination
On 31 May 2023, Ms Magar’s solicitor sent an email to Mad Mex. It stated that the company, through the conduct of its employee Mr Khan, subjected her to serious, repeated and unlawful sexual harassment. It also stated that Ms Magar was subjected to harassment on the basis of sex and discrimination on the basis of sex.
Mad Mex concluded its internal investigation swiftly. On 6 June 2023, Ms Magar was advised by letter that the investigation substantiated some of the allegations she had made. Mad Mex subsequently sent a “Notice to Remedy Breach of Franchise Agreement” to Mr Khan and Mexicali. It stated that the company had breached various policies and statutes, including the Sex Discrimination Act 1984 (Cth). Mad Mex required him to take remedial actions to prevent the termination of the franchise agreement.
Perpetrator threatened defamation suit, demanded apology
The legal response from Mr Khan, however, was aggressive and formed the basis for Ms Magar’s allegation of victimisation. On 21 June 2023, Mr Khan’s lawyers issued Ms Magar with a First Concerns Notice, alleging that her complaints were defamatory. They demanded monetary compensation, an apology and a withdrawal of the allegations. The notice also reserved his right to commence legal action if Ms Magar did not offer amends within 14 days.
Ms Magar, through her lawyers, denied the claims and refused to offer amends. Mr Khan subsequently withdrew the First Concerns Notice and issued a Second Concerns Notice on 28 July 2023. This repeated the demand for compensation and an apology. Ms Magar again responded through her lawyers. She denied the validity of the notice, after which Mr Khan did not respond further.
Sexual harassment left her bedridden with PTSD
In December 2023, Ms Magar lodged a complaint with the Australian Human Rights Commission asserting breaches of the Sex Discrimination Act 1984 (Cth) by Mexicali and Mr Khan. Her complaint was heard by the Federal Court of Australia in August 2025.
Ms Magar told the Court that the sexual harassment left her bedridden “most days.” She said she was unable to prepare food to eat, get water to drink or go to the toilet “without difficulty.” Ms Magar also said that she was afraid to leave the house alone and to work again. Evidence from her psychiatrist revealed that she had been diagnosed with post-traumatic stress and major depressive disorders.
Lack of arousal didn’t vindicate perpetrator
The Federal Court of Australia readily accepted Ms Magar’s account of the events over Mr Khan’s “emphatic denials.” It found her evidence not only truthful, but also “evocative and compelling.” The Court found that Mr Khan had contravened the s 28B(2) and (3) workplace sexual harassment provisions and the s 47A victimisation provision of the Sex Discrimination Act 1984 (Cth).
The Court dismissed Mr Khan’s claims of innocence, which included a denial of sexual arousal. It observed that a lack of physical ability didn’t provide a “compelling” basis that he did not talk about them.” The Court noted that “boasting or bravado” about fictional sexual exploits is “notoriously” an aspect of sexual harassment.
Workplace was ‘conducive’ to sexual harassment
The Federal Court found that Mr Khan and other senior male staff fostered a workplace culture that was “disinterested” in preventing sexist conduct from taking place. Instead, it was found to be tolerant or even “conducive” to its continuation. The Court accepted that this environment was characterised by overt and outspoken “sexist and boorish behaviour.” It said that this atmosphere could “normalise” sexualised behaviour towards women and foster an escalation into worse behaviour.
Regarding the direct sexual harassment, the Court noted that any “reasonable” person would have anticipated the possibility that Ms Magar would have been offended, humiliated or intimidated. This high threshold was met due to the severity of the conduct. Other contributing factors were Ms Magar’s specific vulnerabilities, which included her age, her status as a migrant student with no family support in Australia, and her known mental health history, which created a significant power imbalance.
Threat of defamation suit was to ‘intimidate’ victim
The Federal Court ruled that Mr Khan’s response to the complaint process constituted victimisation. The finding was based on the fact that Mr Khan’s lawyers twice threatened to bring defamation proceedings against Ms Magar if she didn’t retract her complaints. The Court concluded that this action was done to “intimidate” Ms Magar and dissuade her from pursuing her sexual harassment allegations.
This conduct was found to amount to victimisation that contravened s47A of the Sex Discrimination Act 1984 (Cth).
Harassment on the grounds of sex allegation rejected
Ms Magar had claimed that the general sexist comments about other women constituted harassment on the grounds of sex. She argued that this was a violation of the newly enacted s 28AA of the Sex Discrimination Act 1984 (Cth).
This allegation was however not upheld by the Federal Court. This was due to its interpretation of the phrase “in relation to” Ms Magar personally. The Court found that the general demeaning comments and “purported humour” about sexual activity were not proven to be about or directed at Ms Magar.
However, the Court stressed that while not a direct contravention, the general sexist behaviour was highly relevant. This is because it created an environment that allowed the sexual harassment to occur and fostered worse behaviour.
Record sexual harassment damages awarded
Ultimately, the Federal Court found that Mr Khan had sexually harassed Ms Magar and had victimised her for complaining about his conduct. She was awarded a total of $305,000, establishing a new record benchmark for damages under the Sex Discrimination Act 1984 (Cth) in this type of case.
The compensation comprised of $160,000 in general damages for the pain and suffering caused by the sexual harassment. Also, $10,000 in general damages for the harm caused by the victimisation. Ms Magar was also awarded $130,000 for economic loss. This included both past and future loss, reflecting her extensive inability to work following the trauma.
Ms Magar was also awarded $5,000 in aggravated damages due to the “highly offensive”arguments Mr Khan had made in his defence. The Court noted that it would likely order costs against Mr Khan. His lawyer indicated that he is considering an appeal.
Have you faced sexual harassment?
If you’ve experienced sexual harassment or sex-based discrimination at work, you don’t have to stay silent. A Whole New Approach is here to help. For over 30 years, we’ve stood beside victims of harassment.
Our experienced advocates have helped thousands of Australians hold employers and perpetrators accountable. Call us now on 1800 333 666 for a free and confidential consultation.
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