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Sexual harassment in the workplace

By 17 February 2017Criminal Law
sexual harassment workplace

By Joshua Brown of McNamara and Associates Solicitors

Every worker, no matter gender, age, race or occupation is entitled to be free from sexual harassment in their workplace.

Sexual harassment is defined by the Anti-Discrimination Act 1991 as:-

  1. Subjection to an unwelcome act of physical intimacy; or
  2. Subjection to an unwanted demand or request (whether that request is direct or implied) for sexual favours from the other person; or
  3. Subjection to a sexual comment with sexual suggestion; or
  4. Engagement in any other unwelcome sexual conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described above does so:-

  1. with the intention of offending, humiliating or intimidating the other person; or
  2. in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

Sexual harassment, whether it be a co-worker, a manager, or supervisor is not acceptable in any situation. Sometimes your employer could be responsible for the sexual harassment by one of their employees. This is known as vicarious liability. An employer would not normally be held vicariously liable if they can prove that they took reasonable steps to prevent the harassment. That used to be simply proving that at some stage employees were told that harassment is bad and they were not to do it. The test has now developed into something a bit more complicated.

It is now accepted that a diligent employer will:-

  1. Implement a sexual harassment policy – this policy should have clear and significant consequences for perpetrators of sexual harassment at work;
  2. Regularly train staff about sexual harassment and the policy;
  3. Take complaints seriously and manage investigations well;
  4. Avoid any actions that may be perceived as victimising a complainant. These could include standing down or dismissing a complainant, or demoting or transferring a complainant to another work site;
  5. Treat the safety of workers from harassment as a primary and over-riding duty;
  6. Educate managers about sexual harassment.

Failure to take these actions could result in the employer being held responsible for their employee’s actions.

In some instances sexual harassment can be easily identifiable, such as, a physical assault that is witnessed by others, however, there are some instances where it is sometimes difficult to prove that sexual harassment has occurred or that you, as the employee, were not a willing participate on the conduct.  The Courts have accepted that there are usually three ways in which a person will respond to sexual harassment:-

  1. Ideally, the victim would make it abundantly clear to the perpetrator that the comments are unwanted. Then if they continue, he or she would complain to management. This ideal approach is not always practical and may not be available if the employer is likely to be unsupportive, or to require proof: some employers regard the making of unsubstantiated allegations as a disciplinary matter;
  2. Other employees faced with this problem might try to ignore the comments and hope that they cease;
  3. A further way to deal with it would be to go along with the banter to some extent and that way try to stop it getting out of hand.

If you are successful in proving sexual harassment then you may be compensated for:-

  1. Non-economic loss – for the insult and hurt of the actions, but also included is compensation for any diagnosable injury you may have suffered such as anxiety or depression; and
  2. Economic loss – for any lost earnings you have suffered because of the harassment which can include any past loss but also future loss.

Some of the more prominent cases that have been heard include:-

  1. Nunan v Aaction Traffic Services Pty Ltd[2013] QCAT 565 – where the victim was awarded $102,217.00 for a major depressive disorder and economic loss. The harassment was related to a female traffic controller who was subjected, over a 5 month period, to personal comments and questions of a sexually explicit nature. Ms Nunan went along with the comments hoping they would not get out of hand. She did not complain about the sexual harassment until after she left her employment as she was concerned she would lose her job.
  1. Bell v State of Queensland [2014] QCAT 297 – where the victim was awarded $9,000.00 for an adjustment disorder following her boss asking her to join in a threesome at a Christmas party. There were additional damages for bullying and harassment making up a total of $22,000.00.
  1. McCauley v Club Resort Holdings Pty Ltd [2014] QCAT 243 – where the victim was awarded $35,490.00 for an adjustment disorder following harassment over a three day period in the kitchen area of a resort where the perpetrator said the victim smelt like ‘Old Spice’, called her ‘cougar’ and sniffed, growled and leaned in close to the victim.

Some more recent decisions have been handed down demonstrating an increase in the award for damages resulting from sexual harassment:-

  1. Green v State of Queensland, Brooker and Keating [2017] QCAT 008 – where the male victim was awarded $156,051.00 for a chronic adjustment disorder with mixed emotional features, predominantly anxiety and depressed mood with significant post traumatic stress disorder like symptoms. A significant injury that occurred months after victimisation by a number of co-workers. The injury started developing when the two perpetrators pulled an explicit prank where they tricked the Plaintiff into thinking a ‘sex romp’ occurred in a school’s lunch room, noting the Plaintiff was the cleaner at that school. Props were used which included ladies underwear, condoms, empty bottles of wine and ‘bodily fluids’. It was an elaborate stunt which was ultimately found for be sexual harassment.
  1. STU v JKL (Qld) Pty Ltd and Ors [2016] QCAT 505 – where the victim was awarded $313,316.10 for post traumatic stress disorder and a major depressive illness. The circumstances in this case were that a male employee (onsite caretaker) entered the female complainant’s bedroom (noting she was employed as an onsite guest service agent at a hotel) naked, touched her upper thigh and groin and attempted to remove her underwear.

It is important to note that in most of these cases the employers were found vicariously liable, generally because they did not implement sufficient guidelines and training for sexual harassment.

It is also important to note that time limits apply for complaints of sexual harassment. In Queensland you only have 12 months to lodge your complaint in writing to the Anti Discrimination Commission of Queensland or the complaint may not be able to be investigated.

For more information or assistance for sexual harassment complaints please contact our Mr Joshua Brown on (07) 3812 2300.