Find out why the employer was found to be 'vicariously liable' for the conduct
The Victorian Civil Administrative Tribunal has recently slapped an employer a hefty amount to pay in general damages for a sexual harassment case that involved assault.
The employer was found to be vicariously liable for a perpetrator’s conduct against his colleague. In this case, HR can learn about an employer’s “positive duty to take reasonable and proportionate measures to eliminate sexual harassment as far as possible.”
The worker was employed as a female beauty therapist at the employer’s male grooming business. She said she “suffered persistent sexual harassment” from her co-worker during her 11-month employment.
Among many acts, the worker alleged that the co-worker performed the following:
- sticking his tongue in his cheek and looking at her in a sexual gesture;
- deliberately brushing past her;
- making suggestive comments, jokes and sex noises;
- making comments about her body;
- enquiring about her sexual relations; and
- requesting sex with her while at work;
The worker complained about the harassment but eventually resigned when the harassment resulted in an assault. The worker alleged that she complained about her co-worker’s conduct to the employer, but the latter “took no action to prevent the sexual harassment from occurring after receiving her complaints.”
“By failing to act on the complaints and continuing to roster the workers to work together, the employer has assisted, authorised and/or encouraged the conduct,” the worker argued.
As for the employer’s defence, it did not dispute the fact that the worker suffered harassment and assault, but it argued that it was “not vicariously liable” because the worker’s complaints had “insufficient detail” at the time she made them. The employer also said it had “an employee handbook, containing anti-discrimination and sexual harassment policies, which formed part of an employee’s induction.”
The tribunal’s decision
Despite the employer’s position, the tribunal noted that the former “did not conduct an investigation.” It also said that it “did not issue a warning letter or threaten any kind of disciplinary action.”
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As to the employer’s argument that an employee handbook existed, the tribunal said that “there were no records of employees reading it, nor was there evidence of the perpetrator receiving additional training following the complaints.”
Is it enough that an employer has policies to prevent harmful conduct?
No. As discussed in this case, the tribunal said that “simply making the policies available electronically” and “discussing them with new employees” are not enough in preventing harmful conduct in the workplace. Firm and reasonable precautions should be put in place against workplace harassment.
“Had the employer conducted a proper investigation, including monitoring its CCTV footage and asking other employees if they had witnessed the sexual harassment complained of, it is likely that the sexual assault would never have happened,” the tribunal said.
What are some ‘reasonable precautions’ that HR could implement in a similar situation?
According to the tribunal, the moment a worker complains about sexual harassment, the employer must investigate the complaint about its validity. And if there is sufficient evidence, it should “warn and threaten to discipline” the perpetrator.
The tribunal also said that “providing training regarding sexual harassment” and “ensuring that the perpetrator has accessed, read and understood its Anti-Discrimination and Equal Employment Opportunity Policy” are necessary measures.
In its decision, the tribunal ordered the employer to pay $150,000 to the worker. The tribunal also noted that the sum is “far from excessive” since the latter has been suffering paranoia, unresolved trauma, post-traumatic stress disorder and anxiety after the incident. The decision was handed down on 28 March.