Cougars and Old Spice – ‘inept’ investigation into sexual harassment

A tribunal has found a Gold Coast resort vicariously liable for the sexual harassment of a female worker and that its mishandling of her complaint contributed to a psychiatric injury.

Queensland Civil and Administrative Tribunal Member Jeremy Gordon found a Gold Coast resort operator vicariously liable for a male chef’s sexual harassment of the then 49-year old female food and beverage attendant, who ran the buffet at the resort.

The attendant alleged that during a golf tournament over three busy days in early March 2010, a male chef sexually harassed her and discriminated against her based on her gender and age, by:

• commenting that she smelt like “Old Spice” – a scent he associated with his grandfather and asking whether anyone else could smell it;
• sniffing the air when in her vicinity, invading her personal space; and
• referring to her as a cougar and making growling noises, including growling in her ear and around her neck.

Unable to initially stop the chef’s actions by ignoring him or turning away, the attendant claimed she told him “this kind of behaviour is unnatural Steve, I’m old enough to be your mother, this is disgusting”. He replied: “you have nothing to be worried about, I’m a happily married man”.

After three days the attendant told the chef that he was an “a…hole” and that he should back off and “f.. off”. The chef apologised, but did not stop his comments. The attendant went on leave for three months and made two WorkCover claims for permanent impairment caused by the sexual harassment and the resort’s investigation, which concluded that her allegations were unfounded.

Member Gordon found that the chef had subjected the attendant to unsolicited acts of physical intimacy and engaged in unwelcome conduct of a sexual nature, saying that a reasonable person would have anticipated the possibility that the attendant would be offended or humiliated by the conduct.

He also found the chef made the cougar and “Old Spice” references in response to the attendant’s age. Member Gordon said it was “very surprising” that in its “bungled investigation“, the resort failed to corroborate the attendant’s allegations, especially given WorkCover’s later conclusion “without a doubt that the events alleged by [the attendant] did take place”, injuring her as a direct result. He described as “extraordinary” the fact that the HR manager failed to obtain a full version of the events from the attendant’s point of view before asking the chef to make a statutory declaration. He said the HR manager took the view that it was not her role when interviewing the chef to prompt him with the attendant’s full complaint, which left her with the “barest of information” and without the necessary context to test the chef’s story.

“This error was compounded by the fact that [the chef] was not interviewed again. This meant that his statutory declaration made on the day of that meeting stood as his statement in the investigation. The first time [the attendant’s] allegations in full were put to [the chef] was at the hearing before me,” he said.

The resort’s employee relations and remuneration manager concluded that while the chef had made the ‘Old Spice’ and ‘cougar’ comments, he said “a reasonable person in similar circumstances would view the comments as light hearted and not derogatory”. But Member Gordon found this conclusion was inadequate, because the resort failed to:

• give the manager a copy of an interview between the HR manager and the chef in March 2010, when he admitted telling the attendant “you are a bit of a cougar”;
• ensure the attendant was interviewed by the investigator (she didn’t know one had been appointed); and
• provide the attendant with an opportunity to comment on the resort’s findings before she was told the result.

Further, three witnesses (including the HR manager) who the attendant alleged were present in the kitchen, including when she told the chef to “f… off”, were not called to give evidence during the investigation.

Member Gordon accepted that the HR department was “hard pressed, understaffed and overworked”, but rejected the attendant’s claim that the resort intended to avoid making a sexual harassment finding. Member Gordon found that the sexual harassment, discrimination and the mismanagement of the attendant’s complaint contributed to and caused her to suffer from an adjustment disorder and depression, leaving her unable to work at the resort.

Member Gordon found that while the resort had a fair treatment policy, it was unable to provide details of training provided to its employees. He described the resort’s response to the attendant’s sexual harassment complaint as “inept and unprofessional” and ordered it to pay her $35,490 in compensation for loss and damage, and ordered the chef to pay her $4,500.

iHR Australia cautions that cases such as this underline the need for bullying and harassment training to assist employers in applying correct policies and procedures. As outlined above, the alternative is very costly.

According to the Australian Human Rights Commission, as an employer, you may be held legally responsible for acts of sexual harassment committed by your employees. This is called ‘vicarious liability’. The Sex Discrimination Act makes employers liable for acts of sexual harassment unless they have taken all reasonable steps to prevent it from taking place.

The key to preventing sexual harassment is for employers and management to make it clear to every employee that sexual harassment is unacceptable in the workplace, part of this process is providing appropriate bullying and harassment training.

Employers should ensure that they have in place a clear sexual harassment policy that is implemented through communication, education and enforcement.