Sexually Harassed by Colleague and Flawed Investigation Results in $150K damages

A woman has been awarded $150,000 in damages for a psychiatric injury after she was sexually harassed by a colleague. The Victorian Civil and Administrative Tribunal (VCAT) also heavily criticised her employer in the decision for failing to conduct an impartial investigation.

The accused male employee and the victim’s employer, Parker Manufactured Products, were ordered to jointly pay $130,000. In addition, the company was ordered to pay an extra $20,000 in damages.

The alleged sexual harassment by the male included addressing the employee using sexualised nicknames, staring at and making comments about the employee’s body, approaching the employee from behind and massaging her shoulders and neck, and showing the employee a Facebook page on which he communicated with young girls. It also included an incident of sexual assault at the employee’s home after Mr Abdallah dropped her home when she was unwell.

According to Vice President Judge Harbison of VCAT, the company tried to “blacken the character of the Applicant,” favouring the accused and agreeing to indemnify him of any liability, and there was no impartial investigation.

The Judge Harbison expressed concern that “no proper and independent investigation was carried on by the company.” One of the investigators, a Director of the Company, formed a view of the complaint after “googling his own research on the internet about sexual assault.”

The Judge said it was alarming that he was “prepared to base decisions about whether or not to defend this claim on the basis of uninformed internet browsing.”

The decision of Judge Harbison further added that the applicant was “a young woman with the rest of her life in front of her” and that “this sexual harassment has literally stopped her in her tracks.”

The employer was found to be vicariously liable under s109 of the Equal Opportunity Act 2010 and was ordered to pay aggravated damages for the way it handled the complaint and for not taking a “a neutral position in this case.”

This case further highlights the need for harassment complaints to be handled by employers in a professional and impartial manner. It also highlights the issue of vicarious liability faced by employers in harassment and bullying cases.

Kerkofs v Abdallah (Human Rights) [2019] VCAT 259 (22 February 2019)

By Greg Arnold

Director and Principal Consultant

Effective Workplace Solutions

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