By Clayton Payne
What can an act of inappropriate flirtation cost a business, and how should employers defend their staff and themselves from such incidents?
In a recent decision of the Civil and Administrative Tribunal in ABC v DEF Restaurant and GHI, a restaurant worker was awarded $10,000 after she alleged that a manager of the restaurant at which she was working, grabbed her breast on one occasion, forcing her to quit.
The worker did not quantify her wage loss as a result of not being able to return to work, but she was able to obtain corroborating evidence from her daughter, who also worked at the restaurant, and a treating psychologist.
The alleged perpetrator was the husband of the owner of the restaurant, who denied the incident, claiming that the worker was motivated by the fact that she had borrowed money from him and did not want to repay it.
In finding that the alleged perpetrator’s conduct was clearly sexual harassment and that the restaurant as his employer was vicariously liable for his conduct, the Tribunal also found that “… no education of staff (was) undertaken by the management of DEF restaurant about sexual harassment in the workplace”.
Although a New South Wales decision, such a complaint could easily be made in Queensland against an alleged perpetrator of sexual harassment, and their employer. The case serves as a timely reminder, particularly in the lead up to the “silly season”, that all employers should have policies in place that dealing with sexual harassment, and appropriate workplace behaviour. Such a policy should be backed up by an appropriate education program.
The Anti-Discrimination Act 1991 (Qld) in particular provides a defence to a claim of vicarious liability against an employer if they can show that they have taken reasonable steps to prevent the relevant conduct from taking place. It is submitted that having an employer present, appropriate policies and evidence of staff education would go a long way to assisting in such a defence being successfully argued.
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