Australia: Sexual harassment in supported employment – Risks for employers and how to minimise them

Last Updated: 9 December 2010
Article by Warwick Ryan

In Brief

Employers need to be aware that sexual harassment claims can result from actions which spring from the best intentions. What one person considers to be friendly behaviour can be seen by others as offensive and inappropriate.

A recent decision of the Victorian Civil and Administrative Tribunal (VCAT) has highlighted potential dangers for employers of sexual harassment claims arising in workplaces providing supported employment.

Sammut v Distinctive Options Limited [2010] VCAT 1735

The complainant was a sixty-two year old man employed by a not-for-profit organisation, Distinctive Options Limited (DO), which provided supported employment for people with acquired brain injuries and other disabilities.

DO had what it described as a "huggy" workplace culture, with employees often giving each other hugs as a gesture of support and goodwill.

It was well known within the organisation that the complainant did not like to be touched because he felt that this would jeopardise his relationship with his wife. The complainant even had a nickname to this effect, "Colin who does not like to be touched".

This reputation in the workplace arose from his complaints to other staff about a female colleague who repeatedly hugged him in a manner which was described by a former employee as "intimate hugs – like a woman gives a man".

Although the complainant did not lodge a formal complaint with DO at the time, it was made clear to the colleague on a number of occasions that this physical contact was unwelcome. Nevertheless, the colleague persisted with this behaviour and was not deterred until the complainant told her to stop in front of another employee.

Some time after this series of events, the colleague observed the complainant with confidential employee information and informed another employee, who reported the matter to management. Following an investigation into the matter, the complainant was dismissed.

Claim of sexual harassment

The complainant alleged under the Victorian Equal Opportunity Act 1995 that the colleague had sexually harassed him and that DO was vicariously liable for this harassment. The complainant sought damages for humiliation, pain and suffering.

According to VCAT, the central issues in the matter were whether the conduct constituted sexual harassment and, if so, whether DO should be held vicariously liable for such harassment.

Did the conduct constitute sexual harassment?

VCAT summarised the relevant law regarding sexual harassment in terms of a three-part test:

  • The conduct of the harassing employee must be unwelcome by another employee.
  • The conduct must be sexual in nature, whereby it is either an unwelcome sexual advance; an unwelcome request for sexual favours; or other unwelcome conduct of a sexual nature.
  • The conduct must occur in circumstances in which a reasonable person having regard to all the circumstances would have anticipated that the other person would be offended, humiliated or intimidated.

In applying this test to the conduct of the complainant's colleague, VCAT firstly found that the evidence of the complainant and the former employee clearly demonstrated that the conduct was unwelcome, as the complainant had told the colleague to desist on a number of occasions and had a reputation in the workplace for not liking to be touched.

Further, as the EO Act provides that conduct of a sexual nature includes "subjecting a person to any act of physical intimacy", the evidence adduced of the physically intimate hugs clearly established the second part of the test.

In relation to the final part of the test, DO submitted that no reasonable person would have viewed the conduct as offensive and that the EO Act was not designed to address such trivialities or to sterilise workplaces from harmless displays of care and respect between colleagues.

VCAT rejected these submissions and found that the conduct was neither trivial, nor a harmless display of care and respect. A highly influential factor for this finding was the complainant's stated view that the colleague's behaviour would jeopardise his relationship with his wife. This fact, together with the physically intimate nature of the hugs and the complainant's reputation for not liking to be touched, led to the finding that a reasonable person would have anticipated that the complainant would be offended or humiliated.

Accordingly, it was held that the conduct of the complainant's colleague constituted sexual harassment within the meaning of the EO Act.

Was the employer vicariously liable for the sexual harassment?

Under the EO Act, an employer is vicariously liable for sexual harassment engaged in by one of its employees against another employee unless it takes reasonable precautions to prevent the contravention.

DO submitted that it had taken such precautions, because it had clear and detailed policies and procedures regarding sexual harassment and because employees had sufficient knowledge of these policies and procedures.

VCAT found that although DO had such policies and employees were aware of them, this was not sufficient because DO's management did not understand the policy properly, did not act in accordance with the policy and did not take complaints related to the policy seriously.

As a result of this finding, VCAT found that DO was vicariously liable for the sexual harassment and awarded the complainant $2,000.00 for humiliation, pain and suffering.

Lessons for employers providing supported employment

Supported employment can present sector-specific risks of sexual harassment claims arising. One such risk is that due to the nature of their disability, particular employees may fail to appreciate or understand that others may be offended by physical touching, particularly if it is generally considered to be part of normal and acceptable behaviour in that workplace.

Significantly, as this case has demonstrated, the fact that hugging and physical touching is commonplace in a workplace has no bearing on an employee's right to make a sexual harassment claim or on the chances of the claim being successful.

Sexual harassment is an issue to be taken very seriously by employers, because not only may they be held vicariously liable for the actions of the harassing employee and be required to pay compensation to the victim, but their reputation can suffer. This can affect the viability of the business and its ability to attract job applicants.

It is vital for all employers to implement the following steps to minimise the risk of such claims:

  • Ensure that the organisation has clear and detailed policies regarding sexual harassment which outline the procedure involved in handling such claims.
  • Inform existing staff of these policies by circulating them throughout the workplace. If not all staff are literate, ensure that the policy is clearly explained to them verbally.
  • Inform new staff of these policies through induction training.
  • Ensure that managers and supervisors have a sound knowledge of how the policy works in practice so that they are able to act in accordance with it. This is particularly important if some employees are unable to understand the policy fully or cannot remember to abide by it.
  • Take sexual harassment complaints very seriously by implementing a thorough investigation, rather than relying on the victim to approach the harassing employee and explain that the conduct is unwelcome.

Additional detailed information about sexual harassment in the workplace can be downloaded from the website of the Australian Human Rights Commission.

Swaab Attorneys was the highest ranking law firm and the 13th best place to work in Australia in the 2010 Business Review Weekly Best Places to Work Awards. The firm was a finalist in the 2010 BRW Client Choice Awards for client service and was named the winner in the 2009 Australasian Legal Business Employer of Choice Awards.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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