$1.36 million price tag for workplace bullying and sexual harassment

Harrassment

It is clear from the number of recent media reports that no industry can claim to be immune from the problem of sexual harassment. Just since the start of this year, sexism and sexual harassment ‘scandals’ have been reported in the worlds of sport (Chris Gayle), music (US-based publicist Heathcliff Berru), finance (ANZ bank), law (as yet unnamed Melbourne CBD law firm), politics (Jamie Clements) and the media (Hamish McLachlan).

More and more, employers are being held to account for the actions of their workers who sexually harass – and the managers that condone it, explicitly or implicitly, by failing to act on complaints.

In 2014 the Full Federal Court sent a clear message that being held to account would cost a lot more than it had in the past. In Richardson v Oracle Corporation Australia Pty Ltd and Tucker the Full Federal Court increased damages awarded for sexual harassment from $18,000 to $130,000. In delivering its judgement, the Court ruled that the initial amount did not reflect “prevailing community standards” and there is “a deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience”.

More recently, Winslow Constructors has had a $1.36 million price tag put on the sexual harassment, bullying and abuse one of its labourers was subjected to.

Over a two-year period, the female labourer was shown pornographic material and asked if she would “do this”; had repeated comments made about parts of her anatomy; was put down and insulted; slapped on the bottom; grabbed from behind; and had a sex act simulated on her and told by a male colleague that he would follow her home and rape her.

The Court accepted that she was reluctant to complain because the foreman was responsible for some of the offensive remarks and when she did complain to him about a particular comment, he laughed.

She complained to the area site manager on a number of occasions but it did not appear any action was taken. She was eventually moved to a different area and for 9 months the bullying and harassment stopped. However, when she was inexplicably returned to that area, the previous behaviours resumed.

The Court accepted the female labourer was unlikely to ever work again as a result of her treatment and the severe psychiatric condition she now suffered from. The $1.36 million included general damages, past economic loss and loss of future earning capacity.

In our digital age, employers are also finding themselves being held to account online.

A social media storm erupted when Chris Gayle (a cricketer) asked Mel McLaughlin (a female reporter) out for a drink while she was interviewing him. TEN Sport’s initial response wasn’t ideal (see below) and it quickly deleted its initial tweet, which called Chris Gayle “smooth”, and apologised for it.

Gayle_Tweet

Sexual harassment is no longer regarded as behaviour that should be tolerated.  Employers are vicariously liable for sexual harassment unless they have taken all reasonable steps to prevent it from happening in the first place.

At its most basic, preventative action includes having a clear, well communicated policy that is compliant with the Australian Human Rights Commission’s Code of Practice on Sexual Harassment. It also includes regular training for your workforce and managers.

How long has it been since your business reviewed its policy on sexual harassment and trained your workforce? 

Contact Emma Howden, National Manager – Workplace Training and Events, to discuss how Ai Group can help.

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Emma Howden
Emma has specialised in workplace relations and employment law since 1997, having worked at law firms and employer associations both in Australia and the UK. Since 2011, she now provides training for the areas in which she used to advise, managing Ai Group’s workplace relations training and seminars nationally.

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