Are you being sexually harassed at work? Take action!

sexual-harassment-at-work

There is significant confusion among people about the type of behaviour that constitutes sexual harassment. Despite being outlawed for over 25 years, sexual harassment remains a problem in Australia, many sexually harassed/abused people, particularly women, are still reluctant to take action!

Are you being sexually harassed at work? Take action!

sexual-harassment-at-work

Did you know that just about 27% of workers report they have been sexually harassed in their workplace?! (A 2008 Sexual Harassment National Telephone Survey showed that 22% of women and 5% of men have been sexually harassed in the workplace).

One would think that after increased publicity and the tough legislation, sexual harassment/abuse would not be so prevalent in the workplace.

Incredibly  many sexually harassed/abused people, particularly women, are still reluctant to take action! According to the literature this may be due because these women may feel that they are in a very vulnerable position (not safe to complain) or don’t want to involve police .

 

According to the Australian Human Rights Commission, Sexual harassment is any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated.

Physical behaviour such as unwelcome touching or hugging or non-physical behaviour such as unwelcome sexually explicit emails, sexually suggestive jokes or intrusive questions about a person’s personal life may amount to sexual harassment.

Are you being sexually harassed/abused at work? You CAN and SHOULD take ACTION.

You can take action to stop sexual harassment/abuse and even claim compensation to get you back on your feet without getting sacked from work and without the need for calling the police.

We have heard from a number of female workers who have been sexual harassed at work.

One such a woman explained to us recently that on several (at least 5) occasions, her boss propositioned her. Yet despite rejecting his “advances” repeatedly, her boss continued to touch her [inappropriately]. We advised her to see a doctor immediately, report the boss to the police (with the doctor), get a workcover certificate, seek treatment (i.e. psych) and engage a lawyer ASAP. She got her workcover claim approved in record time, weekly pay (for being off work) and her medical bills were also covered through WorkCover. She is currently pursuing legal action.

There are strict penalties for any employer/boss who victimises a worker who complains about sexual harassment – so don’t be afraid of retaliation and  report it!

There are some practicable legal options available

For starters, you can and should consider

As for legal options you can consider:

  1. Lodging a WorkCover claim – for payment of medical expenses, weekly pay and potentially a lump sum (i.e.permanent psych impairment)
  2. Lodging a Victims of Crime claim- for the same reasons.
  3. Applying  to VCAT (Human Rights) or to the Victorian Equal Opportunity Commission for resolution of your discrimination claim (or similar in your state)
  4. Suing the offender – either under the Sentencing Act or Common Law. If the offender is charged and convicted, they can be ordered to pay you lump sum compensation.
  5. Remedies also exist under the Sex Discrimination Act 1984, and the Fair Work Act 2009 (obviously such claims would go to the Federal Court or the Federal Circuit Court).

Sexual harassment record payout

In 2010, a Full Federal Court has upheld a record $466,000 sexual harassment payout to a South Australian woman, who was sacked after she complained about the lewd and sleazy comments and text messages she received.

The woman, a Ms P, is a 42-year-old  single mother of 2 children who commenced work with Employment Service of Australia (ESA) to be employed as a building consultant with Hickinbotham Homes (Homes) in January 2005.

The Court had found that this poor woman was repeatedly sexually harassed while working with Hickinbotham Homes, and, then, was sacked after she complained.

At the Hearing, the Court accepted that workers of Hickinbotham had made comments about her breasts; that she had received numerous emails requesting sex from male colleagues, that she had received a mobile picture message depicting a woman giving a man oral sex and a text message, ‘U have 2 b better’; and had received unwanted physical contact.

The employer (ESA) had the guts to appeal the ruling, stating they had been unfairly punished because some of the messages had been sent by workers when they were off-duty -WTF!

A Federal Court Full Bench,thankfully, dismissed the sickening appeal, ruling the initial judgment was without error and also  dismissed the company’s attempt to have new evidence introduced (they wanted to use an old alleged Centrelink fraud charge on the woman)

The judges noted:

‘The characteristics of Ms P were that she was a female:
  • who was sexually harassed; and
  • subjected to a robust work environment that she could not tolerate; and
  • had complained of each such treatment;
  • such that she was considered an impediment to the smooth running of ESA’s business.

… It is apparent from the primary Judge’s reasoning that he did not consider that a male would be considered by ESA to have those characteristics. It was necessarily because she was a female that she was in that position. His Honour found that Mr Hickinbotham, and therefore ESA, would not have taken the same approach to a male who was sexually harassed and had complained. That is, he would not have considered that male to be an impediment to the smooth running of the business. It was all of those factors that resulted in the termination of her employment. The primary Judge found that she was dismissed by reason of those factors, all of which followed from her sex …’

The employer (ESA) was also ordered to pay 90% of the legal costs incurred for the appeal.

You can read the full case here: Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92 (27 July 2010) and Poniatowska v Hickinbotham [2009] FCA 680 — 23 June 2009

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2 Responses to “Are you being sexually harassed at work? Take action!”

  1. Sexual Harassment Case. Damages of $476,163 were awarded.

    Sexual harassment is any unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated.

    A person who sexually harasses someone else is primarily responsible for their behaviour. However, an employer must take all reasonable steps to minimise the risk of harassment occurring at the workplace. If an employer fails to take such steps it can be held vicariously liable.

    The legislation which governs sexual harassment is the Sex Discrimination Act 1984 (“the Act”).

    Section 28B(6) of the Act makes it unlawful for a ‘workplace participant’ to sexually harass another ‘workplace participant’ at a place that is a workplace for either or both people.

    This poses two important questions – who is a ‘workplace participant’ and what does the term ‘workplace’ cover?

    The case of Ewin v Vergara [2013] FCA 1311 deals with these two important issues.

    In that case Ms Ewin and Mr Vergara were accountants working in the same office in Melbourne. However, Mr Vergara (a contract worker) was contracted to Ms Ewin’s firm to carry out an audit. Ms Ewin alleged that in May 2009 she was subjected to sexually suggestive comments, inappropriate touching, sexually propositioned, and most seriously, physical sexual assault following a work function. As a result of the alleged behavior Ms Ewin suffered significant psychological injury.

    Despite the fact that Ms Ewin and Mr Vergara were not employees of the same company Ms Ewin relied upon Section 28B(6) of the Act (see above). Mr Vergara contended that he did not fall under the coverage of the Act. Although he did not challenge the fact that he was a ‘workplace participant’ for the purposes of the Act, he did challenge whether the alleged harassment occurred at a place that is a workplace of both participants. This went to the question of whether a workplace is confined to premises exclusively occupied by workplace participants and not to common areas shared with others and whether the usual workplace of participants is only a workplace during work time.

    Justice Bromberg of the Federal Court of Australia found that Mr Vergara engaged in unwelcome physical conduct of a sexual nature which amounted to sexual harassment. It was held that Mr Vergara, despite being a contract worker, was a ’workplace participant’ and he was capable of contravening the Act. Further, it was held that the meaning of workplace is not confined to premises exclusively utilised by the workforce of which the workplace participants are members and therefore could include such places as entrances, lifts, corridors, toilets etc. Damages of $476,163 were awarded which included $110,000 for general damages, $293,000 for past loss of earning capacity and $63,000 for loss of future earning capacity. Although the employer was not subject to the proceedings there was an out-of-Court settlement in which the employer may have contributed to a significant degree.

    It stands that the essential requirement in cases involving sexual harassment in a work setting is a common workplace between both participants. Further, employers have a significant responsibility to ensure that allegations of sexual harassment are properly investigated and reasonable steps are taken to minimise the risk.

    [http://www.tgb.com.au/blog/case-study-sexual-harassment-work]

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    HuntingWorkcover February 1, 2014 at 12:14 am
  2. Woolworths manager denies assaulting employee.

    A Woolworths manager at the centre of a $1.3 million sexual harassment suit has admitted he ”grabbed” a female colleague but denied assaulting her.

    Steven Clark, a former manager at Woolworths Blacktown, told the Federal Circuit Court in Sydney on Friday that former night duty manager Alysha Wilkie was distracted by another colleague so he seized her arm and pulled her into his office in May 2011 to talk to her.

    The incident was recorded on closed-circuit TV cameras.

    Mrs Wilkie’s barrister, Paul Blacket, SC, asked Mr Clark why it had been necessary to grab her arm and take her into the manager’s office.

    ”To have a good conversation. She was too busy talking to [another worker] at the time,” Mr Clark said.

    ”The physical handling of women in the workplace isn’t something a manager should undertake,” Mr Blacket said.

    ”Yeah, I’d agree with that,” Mr Clark said.

    Mrs Wilkie, 34, alleges Mr Clark assaulted her inside the office by holding her in a tight grip and running his hand up and down her forearm.
    Mr Clark said he shook her hand ”gently”.

    There is no footage from inside the office but photos of bruises on Mrs Wilkie’s arm days after the alleged assault have been tendered in court.

    Mrs Wilkie is suing Woolworths under the Human Rights Commission Act, claiming she developed post-traumatic stress disorder and anxiety as a result of alleged harassment by Mr Clark between February and May 2011, and that she attempted suicide in September 2012.

    The mother of three told the court this week that she dyed her hair from blonde to brown and gained weight after the alleged incidents because she did not want anyone ”to touch me or look at me again”.

    She claimed Mr Clark made a series of lewd comments such as ”been keeping your husband up late?” and asking if she had ”thrown her leg over the wrong way” when she was late to work.

    Mr Clark denied he made the comments. ”I think I said, ‘did you roll back in bed and go to sleep?”’ he told the court.

    ”Why did you need to trespass into the bedroom of the employee and ask questions [about her sleeping habits]?” Mr Blacket asked. ”I didn’t have to,” Mr Clark said. ”I was trying to make her feel more comfortable.” The alternative would have been to reprimand her for being late.

    Mr Clark admitted he also texted Mrs Wilkie the words ”you’re soft” while she was working on the night shift, but he said this was a reference to sales figures.

    Mr Clark, who is manager of a ”similar-sized” Woolworths said no disciplinary action had been taken against him.

    Mrs Wilkie stopped work in October 2011.

    Before she changed her hair colour: Alysha Wilkie.

    Before she changed her hair colour: Alysha Wilkie.

    She is on workers’ compensation and Woolworths is paying her medical bills.

    [http://www.smh.com.au/nsw/woolworths-manager-denies-assaulting-employee-20140131-31rkl.html#ixzz2s16TYIQm]

    [http://www.youtube.com/watch?v=MLNwR61QeZA]

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    HuntingWorkcover February 1, 2014 at 9:22 am