Fondling of breasts and buttocks leads to $730,000 payout after employer decides to ignore complaint: how risky management styles can cost your business
An employer has discovered the risks associated with failing to protect a worker from systematic workplace bullying and sexual harassment, with the NSW District Court awarding $730,000 to the complainant.
Rather than taking a worker’s complaint seriously, the employer ignored issues that a Court later considered could have been avoided by “relatively simply means.”
The former employee in question had worked for the employer for six months and had brought a legal claim alleging negligence by her former employer and seeking damages for psychological injury. The employee’s claim alleged that:
• On numerous occasions during her employment, a director of her employer engaged in sexual harassment, intimidation and workplace bullying against her
• After complaining about her treatment to another director (the harasser’s wife, who said “Don’t worry about it. I’ll sort it out.”), nothing was done to address or prevent the offending conduct
• The offending conduct continued unabated and the harasser became increasingly more offensive to her, thereby causing her a psychological illness
The employer denied the former employee’s allegations, as did the harasser. The Court restated the duty of care of employers with respect to workplace bullying and sexual harassment. The Court also outlined the offending conduct, some of which involved:
• After calling her into his work area, the harasser placing his hand up under her shirt, down her bra strap, and grabbing her breast
• The harasser frequently screaming and shouting at people in the office, at least several times per week, and including occasions when he also shouted at her
• The harasser making regular unwelcomed approaches (about two to three occasions per week) including an occasion when he placed his hand up the back of her dress and squeezed her on the bottom whilst she was preparing to leave the office at the end of a working day; also telling her he wanted to have sex with her because he thought she needed a baby.
• Positioning himself behind her whilst she was standing in the small kitchen area of the office and pressing his belly against her, and through his clothing, starting to press and rub his penis against her clothed buttocks or the small of her back
• It was also alleged the harasser had turned up at the complainant’s house uninvited and sought to obtain entry to her home on the day she left work on workers’ compensation.
The Court found that the former employee’s evidence was “entirely convincing” and “there was no cause for doubting her truthfulness.” In a scathing assessment of the harasser’s evidence, the Court considered the harasser “a bombastic witness” and “argumentative”. The Court commented that the harasser sought to “avoid answering questions that posed potential difficulty for him.”
The Court agreed that the former employee had suffered a “humiliating and systematic pattern of sexual harassment”, affecting her ability to lead a normal life, leading to agoraphobia, post-traumatic stress disorder, anxiety and depression, sleeping difficulties and a need for ongoing psychiatric treatment
The Court accepted that the former employee’s psychological illness had been caused by the harasser’s “offensive and sexually harassing behaviour” and “materially contributed to by the former employer’s “apparent inaction” in response to her complaint.
The case demonstrates that a victim of workplace bullying or sexual harassment has legal options aside from specific anti-bullying and sex harassment legislation and highlights the large payouts that are now being awarded for such matters. Upon becoming aware of the offensive conduct to an employee, the employer must act to protect the victim from being further subjected to offending behaviour.
By ignoring the employee’s complaints and not conducting a fair and impartial workplace investigation, the employer has had to endure an expensive and time-consuming court-case, topped off by a massive payout.
