Two recent sexual harassment cases in the Federal Court send important warnings to employers on the importance of having robust policies and procedures in place to help manage the risks arising from inappropriate workplace behaviour.
The cases also emphasis that sexual harassment can take many forms, not just physical conduct.
The Full Federal Court’s appeal decision in Richardson v Oracle Corporation Australia Pty Ltd saw the amount of damages awarded to the victim of sexual harassment increased from $18,000 to $130,000 (damages plus economic loss).
Oracle knew that Ms Richardson had been harassed by a male co-worker on at least 11 separate occasions in 2008, in private and in front of other employees. The offensive conduct involved a series of slurs and sexual advances. Oracle was found liable for the perpetrator’s conduct as it had failed to show that it took all reasonable steps to prevent the sexual harassment.
On appeal the Full Court of the Federal Court found that the original amount of damages was ‘disproportionately low having regard to the loss and damage she suffered’ and that a higher amount was justified due to the nature and extent of her injuries and ‘prevailing community standards’. The higher amount took account of the damage done to the victim’s personal relationship as a result of the sexual harassment. She was awarded $130,000.
The perpetrator’s description of his conduct as ‘light-hearted banter’, and his attempt to trivialise its impact on the victim, demonstrates the extent to which some people are still ignorant of the serious nature of harassment and that one of the essential elements of harassment is that the behaviour is unwelcome. It also shows that employers should ensure that they provide clear training on what constitutes inappropriate and illegal behaviour in the workplace.
A second case of the Federal Court is Vergara v Ewin, which emphasises that workplace sexual harassment can occur both in and outside of the office.
In that case Ms Vergara was a Chartered Accountant at a company. The Court found that on four occasions in May 2009 she was sexually harassed by a casual accountant, Mr Vergara, who was also employed by the company. The first three incidents occurred over a three-day period and involved mainly spoken words. The behaviour commenced when Mr Vergara turned the lights off in the office the pair shared at the end of the day and told the complainant that he wanted to talk to her. She agreed and they went to a nearby pub where she was propositioned in ‘very explicit and crude terms’. Mr Vergara later tried to kiss her as they walked to a nearby train station. The fourth incident involved sexual intercourse after a work event at the Melbourne Aquarium. Due to being intoxicated at the time, the complainant had no recollection of the fourth incident taking place.
Mr Vergara appealed the Court’s original finding against him that also saw the complainant awarded nearly $500,000 in damages. Mr Vergara challenged the Court’s initial finding that the incidents of sexual harassment had occurred at a ‘workplace’, as that term is defined in the Sexual Discrimination Act 1984 (Cth). In the Act ‘workplace’ is defined to mean ‘a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.’
The Court held that:
• a workplace ‘may be a fixed or moving location’; and
• going to the pub was triggered by what had commenced at the office and therefore the function of both locations was that of the ‘workplace’
The Court’s decision in this case is important because it stands for the proposition that sexual harassment can occur outside the office, if there is a sufficient work connection. It is also important that employers are alert to the fact that harassment is not confined to actions between employees, but can extend to conduct between an employee and a contractor – as Mr Vergara was in this case.
Both cases are warnings to employers to ensure that they have adequate harassment and dispute resolution policies in place and that their staff are trained to understand those policies and more importantly, what behaviour constitutes sexual harassment and where it can occur.
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