Sexual harassment claim reinforces need for effective employer policies and training

E-Briefs | Employment, Industrial Relations and Safety

  • Sexual harassment claim reinforces need for effective employer policies and training image

Is your business doing enough to eliminate sexual harassment in the workplace? If not, the cost could be high.

The recent decision of the Victorian Civil and Administrative Tribunal (VCAT) in Oliver v Bassari [2022] VCAT 329, in which an employee was awarded $150,000 in damages for being sexually harassed at work, serves as an important reminder to employers of the potential consequences of not taking reasonable measures to eliminate sexual harassment in the workplace.

Background

The employee, Ms Oliver, applied to VCAT for general damages for being sexually harassed at work under the Victorian Equal Opportunity Act 2010 (EO Act).

Ms Oliver claimed a male colleague, Mr Catalfamo, had harassed her over a period of 11 months in or about 2018 when she was employed as a beauty therapist for male grooming business, “Man Oh Man”.

Mr Catalfamo’s conduct included sticking his tongue in his cheek and looking at Ms Oliver “in a sexual gesture”, brushing past her deliberately, making suggestive comments, jokes and sex noises, slapping her bottom and asking if she would like to see his penis.

Ms Oliver resigned from her employment after Mr Catalfamo allegedly sexually assaulted her.

Employer held vicariously liable

VCAT found that Ms Oliver had been sexually harassed by Mr Catalfamo in the workplace in contravention of the EO Act. Based on that finding, VCAT then also considered whether the employer was vicariously liable for Mr Catalfamo’s conduct.

To defend a claim of vicarious liability under the EO Act, the employer had to satisfy VCAT that it had taken reasonable precautions to prevent sexual harassment in the workplace.

VCAT ultimately determined that the employer had not taken reasonable precautions to prevent sexual harassment in the workplace, and was vicariously liable for Mr Catalfamo’s conduct, on the basis:

  • that while the employer’s Employee Handbook dealt with matters relating to sexual harassment, the only precautions the employer had taken to prevent sexual harassment in the workplace were to make its Employee Handbook available electronically and to discuss the Handbook in “rudimentary” detail in a staff meeting in 2018; and
  • of the employer’s “manifestly inadequate” response to the two complaints of sexual harassment that Ms Oliver had made against Mr Catalfamo during her employment with the employer. VCAT found that after the first complaint the employer could have implemented reasonable precautions to prevent further sexual harassment by, for example, investigating the matter and, if appropriate, taking disciplinary action against Mr Catalfamo or providing him with further training regarding sexual harassment.

On the question of what, if any, damages were payable to Ms Oliver, VCAT:

  • noted that the purpose of general damages in sexual harassment matters is not to punish respondents in claims of sexual harassment but to compensate the applicant for any loss, injury or damage they may have suffered as a result of that harassment;
  • accepted that the courts and tribunals had since Richardson v Oracle Corporation Pty Ltd & Anor [2014] FCAFC 82 (Richardson) demonstrated a willingness to compensate victims for non-economic loss, and in particular, the “hurt, distress and humiliation” they had suffered;
  • took into consideration that Ms Oliver had pre-existing mental health conditions at the time the sexual harassment occurred, but that those conditions were “exacerbated by the sexual harassment to which she was subjected”; and
  • found that as a consequence of the sexual harassment to which Ms Oliver was subjected, Ms Oliver suffered and continues to suffer distress, hurt and humiliation and the exacerbation of her pre-existing mental health conditions, which were a form of compensable non-economic loss and damage.

In awarding Ms Oliver what it described as a “far from excessive” $150,000 in general damages, VCAT had regard to:

  • the objectives of the EO Act to eliminate sexual harassment to the greatest extent possible;
  • the approach of the courts and tribunals to the award of compensation in sexual harassment cases relating to prevailing community standards as clarified in Richardson;
  • the nature of the conduct to which Ms Oliver was subjected;
  • the fact that Ms Oliver was still suffering the effects of the harassment which, at the relevant time, was 4 years prior; and
  • the likelihood that the effects of the sexual harassment on Ms Oliver would “persist long term but will eventually subside over time”.
Lessons for employers

This case serves as a timely reminder to employers of their obligations to take reasonable steps to eliminate sexual harassment in the workplace and to respond to complaints of sexual harassment by employees and others who may be covered by their policies. It also serves to remind employers of the potentially significant consequences of failing to comply with those obligations.

This case supports that, at the very least, to meet their obligations employers are expected to:

  • develop and implement a policy relating to sexual harassment in the workplace;
  • take reasonable steps to communicate the policy to all of those covered by it and to ensure that they have read and understood it;
  • provide training (including refresher training) in relation to the policy;
  • monitor the workplace to ensure compliance with the policy; and
  • respond to complaints of sexual harassment by promptly investigating them and, where necessary and appropriate, taking disciplinary action.
How can we help?

MV Law’s Employment, Industrial Relations and Safety team has extensive experience in advising on sexual harassment in the workplace.

We can assist with understanding and managing your obligations with respect to sexual harassment in the workplace, including by developing policies and providing relevant training. We can also assist with managing complaints of sexual harassment, including conducting investigations.

Please contact us to find out how we can help you to adequately protect your business.