Vicarious Liability for Sexual Harassment
An employer has been ordered by a Federal Court to pay $180k in general damages, $15K in aggravated damages and $73,233 in compensation for loss and out of pocket expenses, as it was held vicariously liable for the actions of a male Director who sexually harassed a female employee between 2019 and August 2020. The reported circumstances include:
- The Director buying 19 unsolicited and unwelcome gifts of jewellery and other items;
- Made unsolicited remarks about her “beautiful body” and “bedroom eyes”;
- Slapped her buttocks on at least one occasion and apologising for it immediately afterwards
- Declaring romantic feelings towards her on at least two occasions, again advances the employee rejected.
The employee also claimed that the Director victimised her when she proposed to, and then did complain to the Australian Human Rights Commission.
Although the Director vigorously challenged the complaint, he did concede that he had told the employee that he was attracted to her and that the back of his hand had accidently brushed the employees dress as she walked past him.
The Commissioner however rejected the Directors rebuttal and was reported as being comfortably satisfied in favour of the complainants account, and concerned about anomalies in the Directors account.
While the complaint wasn’t reported until some time after the actual events, the Commissioner accepted there were a host of reasons for this noting sexual harassment was notoriously under-reported. Finally the Commissioner found the victimisation attempts, which consisted of letters demanding the return of gifts or that she would be reported to the police, was disrespectful, belittling and a vindictive act largely in retribution for the employee lodging a complaint.
Worksafe investigates Sexual Harassment claims and issues fines
This massive general damages payment, comes not long after two companies were fined a total of $290k for workplace safety breaches and having inadequate reporting avenues, following a circumstance where a Director sexually harassed six staff members, one of which was only 16 years old. Worksafe commenced investigation into that complaint in 2021 and allegations stretched as far back as August 2014.
Respect at Work Laws took effect last year it is important that employers have various measures in place to prevent sexual harassment. Under the laws the onus is on the employers to demonstrate that they have been proactive in preventing sexual harassment in their workplace. This is more than just have clear sets of policies and procedures, it requires real action to raise awareness about the expectation, having adequate procedures and leaders in place to respond appropriately to complaints and encouraging the reporting of complaints. Employers bright to the legal system without being able to demonstrate adequate actions are at risk of fines, penalties or in the event of claims, rulings going against them.
Good Human Resources protects your business
Active HR has a range of solid HR solutions that helps set a business for success in its efforts to prevent sexual harassment in its workplace, doing what is necessary to keep its people safe and develop a culture that appreciates inclusivity and diversity and shows little tolerance for bigotry and archaic workplace behaviour.