We wrote earlier this year about a VCAT decision in which an employer was found to be vicariously liable for sexual harassment by an employee.[1] In another case, with similar factual circumstances, the South Australian Employment Tribunal has found an employee and employer jointly liable for the sexual harassment by the employee of a co-worker.

Facts

The accused employee in this case had recently started working as a chef at the Adelaide supermarket, Pasadena Foodland. Shortly after he commenced employment another employee working in the juice bar made a complaint that the chef was touching her inappropriately, including an allegation amounting to sexual assault. The employer states that it viewed CCTV footage and concluded that the complaint was not made out. The employer did not speak to the chef, did not take any further action to investigate the complaint and did not inform the juice bar worker that no action would be taken.

It was not until 30 June 2017 that the chef was even made aware that the employee had complained about inappropriate touching. It was then not until mid-July 2017, following further conversations about the allegations and the involvement of the union, that the matter was “escalated” for formal investigation by the general manager.

Decision

In her consideration of the evidence and assessment of the case Tribunal Deputy President Judge Farrell stated that: “The careless approach to the complaint and the viewing of the footage is an important element with respect to Pasadena Foodland’s liability.”

Judge Farrell found that the employer failed to properly investigate the complaint. She went to some lengths to set out the specific failures of the investigation, including:

• not keeping the CCTV footage for the complainant or accused to view;
• not putting the allegations to the chef;
• when witnesses were eventually interviewed, witness statements were not obtained separately;
• not making contemporaneous notes; and
• not informing the complainant of the employer’s decisions regarding her complaint.

Her conclusion was that the report produced by the general manager, some two months after the original complaint, was:

“…a self-serving document, which only highlights the need to ensure that employer’s conduct independent investigations and maintain proper records when complaints are made.”

The employer and employee chef were ordered to jointly pay the applicant employee $30,000 by way of general damages.[2]

Lessons for employers

• Review your policies – in particular code of conduct, bullying and harassment and grievance procedures- and ensure they are properly implemented and enforced
• Make sure you deal with inappropriate conduct as it occurs
• If an investigation is required ensure you follow an impartial, objective process and document the outcome
• Consider engaging an external investigator