As is evidenced on this blog alone, and despite being outlawed for over 25 years, sexual harassment remains a big problem in Australia. The following three sexual harassment cases illustrate that Courts (and Tribunals) are willing to award significant amounts of compensation to workers exposed to serious sexual harassment at work.
Also, where an employer shows frank apathy, disinterest or an inability to properly handle allegations and complaints of serious sexual harassment, the employer may face significant legal exposure far in excess of the person engaging in the harassment. The following cases also demonstrate that orders to pay compensation will not be limited to the employer or the worker(s) engaged in the conduct, as orders may extend to any person involved in the conduct, including independent contractors, and even directors.
Courts are willing to award significant compensation to victims of sexual harassment at work
Sexual harassment case 1: Employer (restaurant) failed to stop sexual harassment by worker’s supervisor
In this case (No 2013), the Federal Circuit Court awarded a former worker of a take-away restaurant about $100,000 following an extended period of sexual harassment by her supervisor. The sexual harassment was not properly addressed by the restaurant’s owner.
The worker started her job at the restaurant in July 2008 and was just about immediately subjected to ongoing sexual harassment by the supervisor who operated the restaurant on a day-to-day basis.
The sexually harassed worker made numerous complaints to the restaurant owner as well as his family members, but was told that the restaurant was losing money, that the business required the supervisor, and that if she took the matter further, it would “end up ugly” for her.(WTF!)
The worker was consequently sacked due to her ongoing complaints about the supervisor’s relentless inappropriate conduct.
You can guess it…The employer sought to justify the worker’s dismissal on several unrelated grounds: its alleged concerns with her performance at the end of her probationary period, a downturn in business, and the worker’s “state of mind”.
Thanks God, the Federal Circuit Court Judge (Rolf Driver) found that the supervisor engaged in serious sexual harassment in contravention of section 28B of the Sex Discrimination Act 1984 (Cth), and that the employer was vicariously liable for his conduct due to its refusal to investigate or intervene in the sexual harassment.
The Judge furthermore disregarded the alleged reasons for the worker’s dismissal, and held that the employer unlawfully victimised the worker by sacking her after her repeated complaints of sexual harassment.
Given the corporate employer had been placed into liquidation and deregistered before the court judgment, Judge Driver made the finding of vicarious liability against the owner of the restaurant personally. The owner was subsequently ordered to pay $75,000 in damages plus interest, with the supervisor ordered to pay an additional $24,300 plus interest.
Sexual harassment case 2: Employer (Gold Coast Resort) bungled investigation into complaint of sexual harassment
A Gold Coast Resort operator was found vicariously liable for a workplace psychological injury sustained by a worker following exposure to sexual harassment by a fellow worker and a subsequent ‘bungled’ investigation by the employer’s HR manager.
The injured worker had made a complaint to the HR Manager of the Gold Coast resort, stating she had been subject to repeated sexually explicit and intimidatory comments and conduct.
However, in response to this complaint, the HR manager ‘investigated’ the allegations by simply requesting that the harasser provide a statutory declaration which was not (never) challenged.
The HR Manager also failed to interview witnesses, corroborate the injured worker’s allegations, or even put the full extent of the injured worker’s complaint to the harasser. The HR Manager failed to give the injured worker procedural fairness, by depriving her of the opportunity to be interviewed by the investigator or allowing her to comment on the findings before the investigation had been finalised. The proper investigation subsequently concluded that the harasser’s allegations were unfounded.
This sexual harassment, together with the outrageous and unsubstantiated finding that no harassment took place, resulted in the injured worker suffering a psychiatric workplace injury and lodging a WorkCover claim for permanent impairment.
Perhaps for once, WorkCover’s investigation into the matter concluded that the harassment definitely did take place, and that the sexual harassment was the primary cause for the injured worker’s injury. The Queensland Civil and Administrative Tribunal (‘QCAT’) Member found that the sexual harassment, discrimination and subsequent terrible mismanagement of the complaint by the HR manager all contributed to the injured worker’s injury. The Member described the employer’s response as inept and unprofessional, and ordered it to pay the injured worker $35,490 in compensation for loss and damage. The harasser was additionally ordered to pay the injured worker $4,500.
Sexual harassment case 3: independent contractor guilty of sexual harassment
Under the Sex Discrimination Act, “a workplace” isn’t limited to the employer’s own premises!
In a recent case (Dec 2013 -Ewin v Vergara (No 3) (2013) FCA 1311 ), the Federal Court confirmed that laws relating to workplace sexual harassment need not be confined to unlawful conduct between workers only, and that the concept of a workplace should not be defined narrowly. The Applicant in the proceeding was a female worker who alleged that a male colleague verbally and sexually harassed her in contravention of section 28B of the Sex Discrimination Act 1984 (Cth), which prohibits sexual harassment in various employment settings. The harasser sought, unsuccessfully, to argue that no claim of sexual harassment could be made pursuant to that section, as he was an independent contractor rather than a worker, and sought to argue that ‘corridors and areas near lifts’ where the conduct had taken place, should not be considered part of a workplace. (WTF)
In its decision, the court held that the non-worker (or non-employee) status of the harasser was irrelevant, as the Act did not only prohibit sexual harassment between workers (employees), but extended the prohibition to workplace harassment between of ‘workplace participants’, including volunteers and independent contractors. The court further held that the concept of a workplace should not be restricted to exclude associated common areas such as entrances, lifts, corridors, kitchens and toilets, and that any alternative interpretation would undermine the objective of the legislation.
The court ordered the harasser to pay $476,000 to the harassed worker, comprising $356,000 for loss of past and future earning capacity, $10,000 for medical expenses, and general damages of $110,000.
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