Cooper v Western Area Local Health Network [2012] NSWADT 39

The decision

The NSW Administrative Decision Tribunal decided that employer, Western Area Local Health Service (WALHS) was not vicariously liable for the actions and conduct of one of its male workers who sexually harassed a female colleague.

The incident

The claim involved female co-worker (Ms Cooper) being handed a note after a training day and before dinner by a male co-worker (Mr Locke). The note contained 'extremely sexual explicit material – with no images.' It was unclear who the author of the note was and there was no clear indication as to whether it was originally intended for Ms Cooper.

Prior to the incident Mr Locke and Ms Cooper had worked together for a period of about five years and were to some extent 'friends' – they had attend social gatherings together.

Central issues

Throughout the hearing, Ms Cooper said that she believed the note was intended for her and written by Mr Locke. However, the tribunal accepted the evidence of Mr Locke and found that the note was written by another person and taken from his laptop without his knowledge.

Mr Locke gave conflicting evidence at the hearing and this was one of a number of difficulties the tribunal found with evidence. The other difficulties included:

  • Lack of reasonable explanation as to why Mr Locke gave Ms Cooper such a 'inflammatory document' to her in a public setting
  • No credible explanation why Mr Locke gave Ms Cooper the note.

As a result, the tribunal accepted that Mr Locke was not the author of the note, however, they were 'unable to come to any reasonable explanation as to why, in fact, the note was given to Ms Cooper'.

The tribunal noted that it 'wasn't to his credit' to say that 'Ms Cooper was the author of her own misfortune in picking [up the note] of her own volition to take home to read.' Accordingly, the tribunal was satisfied the conduct fell within the scope of s22B of the Anti-Discrimination Act 1977 (the section governing harassment of employees).

Remedy awarded

Once a complaint is substantiated, the tribunal has the power to award damages. The limit to the award is $100,000.

The tribunal awarded $10,000 damages payable by Mr Locke. The factors that the tribunal noted influence awards of damages and the amount awarded include:

  • Severity of the breach of the Act
  • Whether or not it was a one-off incident
  • Context of incident (at work, outside of work friendly relationships between harasser and complainant)
  • Significance of ongoing effects of conduct

It was also noted that damages awarded in these types of cases should be compensatory and not punitive (i.e. 'damages must relate to issues arising out of the incident and not seek to punish the[offender]).'

Why did employer escape vicarious liability?

In order for the Tribunal to be satisfied that WALHS was liable under s53 of the Anti-Discrimination Act 1977 (the section governing liability for principals and employers) they would need to be satisfied that:

  • WALHS did not authorise Mr Locke to engage in the offending conduct
  • WALHS took as reasonable steps to prevent Mr Locke from engaging in the offending conduct.

The tribunal found that s53 was not satisfied because the WALHS had taken the following reasonable steps:

  • At each re-employment or promotion of Mr Locke – he was required to sign code of conduct
  • Code of Conduct in place was explicit and specifically dealt with harassment and sexual harassment, and that it was not permitted
  • WALHS had delivered to its employers a seminar which dealt with sexual harassment and harassment generally.

Comment

This case demonstrates that employers can put measures into place to avoid being found vicariously liable in situations where sexual harassment has occurred. Those measures are known as 'reasonable steps.' Reasonable steps can include:

  • Having a Code of Conduct or policies that deal sufficiently with sexual harassment and its consequences
  • Educating employees on sexual harassment.

We are able to assist you with putting into place the 'reasonable steps' required by the legislation to help you avoid vicarious liability in your workplace.

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.