In a recent case with the Victorian Civil Administrative Tribunal (VCAT), an employer was found to be vicariously liable for a perpetrator’s conduct against his colleague, and fined hefty amount in general damages for a sexual harassment case that involved assault. This leads us to discuss Sexual Harassment and Vicarious Liability – Key Lessons For Employers due to this decision.
It was found that the employer failed their “positive duty to take reasonable and proportionate measures to eliminate sexual harassment as far as possible.”
The worker was employed as a female beauty therapist at the employer’s male grooming business. She said she “suffered persistent sexual harassment” from her co-worker during her 11-month employment.
The worker alleged that the co-worker performed the following:
- sticking his tongue in his cheek and looking at her in a sexual gesture
- deliberately brushing past her
- making suggestive comments, jokes and sex noises
- making comments about her body
- enquiring about her sexual relations
- requesting sex with her while at work
Although the worker complained about the harassment, she eventually resigned when the harassment became untenable and resulted in an assault. She alleged that she made complaints about her co-worker’s conduct to the employer, but the employer “took no action to prevent the sexual harassment from occurring after receiving her complaints.”
The worker argued that “By failing to act on the complaints and continuing to roster the workers to work together, the employer has assisted, authorised and/or encouraged the conduct.”
Whilst not disputing the fact that the employee had suffered harassment and assault, the employer argued that they were “not vicariously liable” because the worker’s complaints had “insufficient detail” at the time they were made. The employer also said it had “an employee handbook, containing anti-discrimination and sexual harassment policies, which formed part of an employee’s induction.”
The tribunal noted that the employer “did not conduct an investigation” when the complaints of harassment were made. It also said that the employer “did not issue a warning letter or threaten any kind of disciplinary action.”
The tribunal said that despite the employer’s assertion that an employee handbook existed, “there were no records of employees reading it, nor was there evidence of the perpetrator receiving additional training following the complaints.” The tribunal stated that “simply making the policies available electronically” and “discussing them with new employees” are not sufficient measures to prevent sexual harassment and assault in the workplace. “Had the employer conducted a proper investigation, including monitoring its CCTV footage and asking other employees if they had witnessed the sexual harassment complained of, it is likely that the sexual assault would never have happened,” the tribunal said.
The tribunal stated that the moment any worker makes a sexual harassment complaint, the employer must investigate the complaint. If sufficient evidence is discovered, the employer should “warn and threaten to discipline” the perpetrator.
The Tribunal pointed out that “providing training regarding sexual harassment” and “ensuring that the perpetrator has accessed, read and understood its Anti-Discrimination and Equal Employment Opportunity Policy” are necessary measures an employer must take if a complaint has been made.
In its decision, the tribunal ordered the employer to pay $150,000 to the worker a “far from excessive” amount according to the tribunal, since the worker has been suffering paranoia, unresolved trauma, post-traumatic stress disorder and anxiety after the incident.
This case highlights the need for employers to positive action in respect to sexual harassment. It highlights the need for employers to investigate claims properly, to ensure that policies are properly communicated to staff and to provide the necessary training for staff to avoid vicarious liability.
Effective Workplace Solutions are available to oversee your workplace bullying, harassment, ans sexual harassment policies, and ensure that your business is compliant so as to avoid claims like the one illustrated above. We also run anti bullying and harassment, and managing sexual harassment in the workplace training seminars for your employees and management staff, so please don’t hesitate to contact us to discuss how we can mitigate your risk in these sensitive areas of your business.
Greg Arnold – Director & Principal Consultant
Disclaimer: This article provides a summary only of the subject matter without the assumption of a duty of care by Effective Workplace Solutions. No person should rely on the contents as a substitute for legal of other professional advice.