The Pitfalls of Sexual Harassment Complaints

August, 2015

By Clayton Payne, Special Counsel

The pitfalls of sexual harassment complaints in the workplace have become increasingly evident in recent years. The media’s reports of sensational cases, as well as the increasing awards of compensation to successful claimants, have been key in bringing these issues to light.

Examples of the type of behaviour which can lead to such a claim were highlighted in a recent Victorian Civil and Administrative Tribunal (VCAT) decision in Collins v Smith.

In that case, the worker alleged that she was subjected to sexual harassment at the hands of her employer/manager. One of her complaints included the employer likening her to a Lamborghini stating “… if I had a Lamborghini in the garage, and I can’t drive it, then I don’t want it here anymore.”

The worker alleged that the employer’s advances included:

•    attempting to kiss her;
•    telling her that he wanted to have sex with her;
•    inappropriate physical touching;  and
•    crude text messages.

Whilst the worker initially told her employer that she was flattered by the attention given to her, she continually rejected his advances throughout the course of the harassment.

The employer denied each allegation and gave evidence that he believed the worker ” … enjoyed his attention and close friendship and through words and subtle actions, encouraged his behaviour”, such as by continuing to ask for Saturday shifts when they would be alone together.

Judge Jenkins found that the employer’s continued sexual harassment contravened the relevant provisions of the Victorian Equal Opportunity Act.

Importantly, her Honour rejected the notion that the employee had to bear some blame for what had occurred, rejecting the employer’s submission that the worker, by continuing to place herself in close proximity to her employer after hours, was “not consistent” with her allegations about her employer’s conduct.

Her Honour also cited an earlier VCAT decision of GLS v PLP where it was found:

“If an employer does engage in the sexual harassment of an employee, it is not appropriate to criticise the employee on the basis that she should have handled the sexual harassment better or should have stormed out of the room or escaped from the harasser earlier. It is enough if the respondent’s conduct constitutes sexual harassment under the Act.”

VCAT will hold a further hearing to determine the compensation to be awarded to the worker.

Conclusion

The potential harm that workers suffer from sexual harassment highlights the importance of prevention. Ultimately, employers have an obligation to provide workers with a safe workplace. Even if it is not the employer who has been the perpetrator of such harassment, they may ultimately be held vicariously liable for the action of their workers. In order to avoid liability, generally an employer needs to be able to prove that they took reasonable steps or reasonable precautions to prevent the sexual harassment from occurring.

The expense in time, compensation, legal and even reputational costs as a result of, and in dealing with, a complaint can be substantial for employers.

Employers are well advised to have robust workplace behaviour policies in place dealing with sexual harassment, and a system by which to train and educate workers on how such policies apply, and what is expected of them.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

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