Employer liable for sexual harassment by employee - March 2019
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Employer liable for sexual harassment by employee - March 2019

Employer liable for sexual harassment by employee - March 2019

The Victorian Civil and Administrative Tribunal recently heard a sexual harassment claim by an employee under the Equal Opportunity Act 2010 in which the employer was named as second respondent.[1] The complaint of sexual harassment was made out and the employee and employer were jointly ordered to pay damages of $130,000, with the employer ordered to pay an additional $20,000 in aggravated damages.

The employee’s claim was that she had been verbally and physically sexually harassed by a co-worker at the workplace on a number of occasions. She also claimed there was an incident when she was unwell at work and the employee in question was asked by the employer to drive her home where he again sexually harassed her.

The evidence was that the complainant had told the employer 3 days after the event that she had been sexually harassed by her co-worker. She then sent an email confirming her account of events.

After finding that sexual harassment had occurred, Judge Harbison referred to s.109 of the Act which provides that if a person in the course of their employment sexually harasses another person then “both the person and the employer must have taken to have contravened the provision”. The exception to this principle is that the employer is not vicariously liable if the employer proves that it took reasonable precautions to prevent the employee contravening the Act.

The directors of the employer, who were self-represented at the hearing, primarily relied on their position that the harassment did not occur as its defence. The employer claimed it had taken “reasonable precautions” by creating a harassment policy and training new staff and that the conduct at the employee’s home fell outside the scope of the employer’s liability.

All of these arguments were rejected. Judge Harbison found there was no credible evidence the employer had taken reasonable precautions to prevent the conduct and that, as the employee was specifically instructed to drive the complainant home when she was unwell, it could not be said that the incident that then occurred was outside the course of his employment.

Aggravated damages were ordered to be paid by the employer for the following reasons:

  1. The employer based its defence on the sexual harassment having not occurred at all
  2. The employer failed to conduct an impartial investigation of the allegations
  3. The employer did not take a neutral position in the case and went to some lengths to support the first respondent
  4. The employer had arranged with the first respondent to indemnify him in respect of any liability

 Lessons for employers

  • Review your policies – in particular code of conduct, bullying and harassment and grievance procedures
  • Be aware of conduct and culture in the workplace and deal with inappropriate conduct as it occurs
  • Educate employees about how to make a complaint
  • Make sure complaints are addressed in accordance with policies and procedures
  • If an investigation is required ensure you follow an impartial, objective process and document the outcome

     

Summary

VCAT recently found an employer vicariously liable for its employee’s sexual harassment of a co-worker and imposed a fine of $150,000 for general and aggravated damages.

 

[1] Kerkofs v Abdallah (Human Rights) [2019] VCAT 259 (22 February 2019)

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