Former employee awarded significant general damages for sexual harassment at work

Former employee awarded significant general damages for sexual harassment at work

A Victorian Tribunal has ordered an employer to pay a former employee significant general damages for ongoing sexual harassment committed by a co-worker. The case highlights the obligation of employers to swiftly investigate and deal with any allegations of sexual harassment, with failure to do so opening up the prospect of being held vicariously liable for any inappropriate behaviour committed by workers.

The female complainant had been employed as a Beauty Therapist at a male grooming business, commencing in January 2018 until her resignation on 30 November 2018. Her resignation was attributed to ongoing sexual harassment from a male co-worker ‘FC’ throughout her employment.

The uncontested evidence presented before Victorian Civil and Administrative Tribunal Member Ian Scott was that FC had engaged in the following conduct towards the complainant:

  • Sticking his tongue in her cheek;

  • Deliberately brushing past her and putting his legs between hers;

  • Making suggestive comments, jokes and sex noises;

  • Making comments about her breasts;

  • Enquiring about her sex life;

  • Slapping her bottom;

  • Asking her if she would see his penis;

  • Requesting sex with her while she was at work;

  • Asking her if he could ‘finger’ her;

  • Attempting to embrace her;

  • Attempting to put his fingers in her mouth while her hair was being washed and her eyes were closed; and

  • Sexually assaulting her by shoving his face between her breasts.

Member Scott accepted that the complainant had raised concerns with the owner of the business on at least two occasions, but during the first conversation, the owner told her that the co-worker was probably just joking. With regard to her second complaint that he was deliberately brushing up against her, Member Scott noted, “(you) turned a blind eye and refused to consider that this conduct, which was not denied by Mr (C) when he was spoken to by the First Respondent, was conduct that met the definition of sexual harassment within the meaning of section 92 of the EO Act”.

Member Scott had no doubt that the complainant had been sexually harassed and was scathing in his assessment of the employers’ response, noting “the Respondents did not conduct any anti-discrimination or sexual harassment training for Mr (C) and other employees, did not conduct an investigation into the sexual harassment allegations, did not examine any CCTV footage that may have recorded the conduct complained of, did not take any disciplinary action against Mr (C) whatsoever…”.

However, Member Scott did not accept the submission of the complainant that the owner assisted, authorised or encouraged the sexual harassment. In his determination, he noted that there was no evidence that the business had requested, instructed or induced the co-worker to conduct themselves in the manner that he did, nor did the employer witness any of the sexual harassment until just prior to her resignation.

In determining damages, Member Scott noted the significant psychological damage the complainant had suffered and would most likely continue to suffer from for several years, requiring extensive medical treatment.

He determined appropriate damages in the amount of $150,000 to be paid to the complainant.

O v B (Human Rights) [2022] VCAT 329 (28 March 2022)

For queries about sexual misconduct, responding to allegations, investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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