BlandsLaw - Blog posts from sexual harassment
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Flawed Investigation: Employer liable for sexual harassment

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

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Employer liable for sexual harassment by employee

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

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The fine line between harmless banter and sexual harassment

Both employers and employees need to be able to differentiate between harmless comments and conduct that crosses into bullying and sexual harassment territory.

When employees do not appreciate how their comments have affected others in the workplace, they commonly claim that they were “only joking”, “just mucking around” or state that they didn’t realise their comments would cause offence. Whilst an appropriate level of workplace banter is heathy and can contribute to employee rapport, employers should ensure that staff understand what is and is not acceptable at work, and deal with any breaches of these standards so that it does not become part of the accepted workplace culture.

In a recent case,[1] a Technical Support Consultant at the Foxtel Call Centre was dismissed for ongoing instances of inappropriate behaviour, repeated sexual innuendo and inappropriate jokes in the workplace. The FWC considered 10 allegations of sexual harassment raised by the employee’s co-workers and, where substantiated, whether these instances formed a valid reason for his dismissal. The employee had been

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Responding to Allegations of Sexual Harassment

Responding to Allegations of Sexual Harassment

When allegations of sexual harassment and bullying arise, it is insufficient for employers to simply point towards a sexual harassment policy in an effort to dissolve itself from legal liability. Employers have a responsibility to prevent and respond to instances of sexual harassment in the workplace.

 

This involves developing robust policies, monitoring policy implementation, regularly communicating policy content and providing ongoing training.

Where allegations of sexual harassment warrant the need for a formal investigation, it is imperative that the investigation is fairly conducted, and the evidence carefully considered. However, this is easier said than done when the alleged incidents are uncorroborated, and employers are left with the classic he said/she said scenario. 

In a recent case before the FWC[1], a mine technician alleged that he was unfairly dismissed for breaching the company’s equal employment opportunity and anti- bullying policy, when his employer concluded that he engaged in sexual harassment towards a 19-year-old female trainee.

The allegations, which were raised at the

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A Queensland tribunal recently found an employer was liable after it failed to properly investigate a sexual harassment claim brought by one of its employees. (McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 (13 May 2013))

The case involved a sexual harassment claim made by a food and beverage attendant against a chef with whom she worked. The attendant claimed the chef had made derogatory comments to her over a number of days and made growling noises in her ear and around her neck. 
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