A recent decision of the Victorian Civil and Administrative Tribunal has highlighted the significant damages which can be awarded under the Equal Opportunity Act 2010 and reinforces the importance of employers having appropriate policies and procedures in place to address allegations of sexual harassment occurring in the workplace.
In the decision (Collins v Smith) (Human Rights) (2015) VCAT 1992 Judge Jenkins awarded the employee in excess of $330,000.00 and also ordered costs against the employer. The claim was bought pursuant to provisions of the Equal Opportunity Act 2010.
As the judge noted, the Equal Opportunity Act 2010 is directed to protecting people from discrimination on the basis of various attributes and, relevantly, include eliminating sexual harassment and victimisation.
In other comments made in the judgement Her Honour noted the devastating effect that can be had upon a person who is the victim of sexual harassment, even in the event of a single incident.
In this case, the employee’s life had been substantially compromised resulting in isolation and disconnection from her family and friends. She had lost independence, lost confidence and lost her capacity to take interest in and pleasure from life. It was thus a substantial loss of enjoyment of life, with pain and suffering, both mental and physical. As a consequence she suffered with chronic post-traumatic stress disorder and a major depressive and anxiety disorder.
The Tribunal also took into account the prolonged period over which the wrongful conduct had occurred, making the employee’s situation intolerable. The employer ignored her requests to enable her to maintain a professional working relationship and the employer embarked upon a relentless course of sexual harassment, principally in the workplace, but also including attempts to meet outside the workplace and blatantly disregarding the employee’s happy marriage. Those factors lead the Tribunal to award an additional $20,000.00 by way of aggravated damages.
The Tribunal also ordered the employer to pay the costs incurred by the employee notwithstanding that generally before the Tribunal each party bears its own costs. In this case however the Tribunal ordered the employer pay costs as it was fair and reasonable to do so in the circumstances.
The employee was employed by the owner/manager of a licensed post office in Geelong.
Over a period of months, the employer made repeated attempts to inappropriately embrace and touch the employee; sexually propositioning her on repeated occasions, and making sexual demands in return for allowing her to earn overtime.
He also sent sexually explicit text messages to her.
The Judge found that the employee had taken reasonable steps to avoid the employers conduct.
This case illustrates the significant impact that sexual harassment can have on an employee and increasingly large figures will be awarded in appropriate cases of discrimination and sexual harassment.
Employers are therefore at risk if they fail to have appropriate policies in place and fail to take all necessary steps to minimise risks to employees. Employers can also be liable for the conduct of their employees who engage in such a way.
Apart from the large compensation payouts that an employer might incur, there is also the risk to their reputation as many sexual harassment cases are receiving significant media coverage.