It's a brave new world. This week's Full Federal
Court appeal decision in Richardson v Oracle Corporation
Australia marks a significant shift in the Court's
approach to assessing damages in sexual harassment cases, opening
the door to considerably higher awards for
The trial judge in the Federal Court found that former employee
Ms Richardson was sexually harassed by another employee, and
awarded her $18,000 in general damages (for her pain and suffering
as opposed to economic loss). Oracle was found vicariously liable
for the harassing employee's conduct. The $18,000 damages award
was squarely within the range of general damages that are typically
awarded in sexual harassment cases of a similar nature where the
allegations do not concern physical conduct.
Ms Richardson appealed, arguing that the damages were manifestly
inadequate, and out of touch with community standards.
The Full Court agreed, and also referred to a growing
appreciation of the detrimental impact that sexual harassment can
have on individuals. In bucking the trend of awarding nominal
damages in sexual harassment claims, it increased Ms
Richardson's award to $100,000. If you don't want to do the
math yourself, that's over five times (!) the amount she was
awarded at first instance.
The award also means that the 2009 decision of Poniatowska v
Hickinbotham in which the employee was awarded $90,000 in
general damages for sexual harassment is no longer the aberration
that it appeared at the time.
The Full Court also disagreed with the initial judge's
conclusion that Ms Richardson's resignation from Oracle had
nothing to do with the sexual harassment she faced. As result, she
was awarded a further $30,000 as compensation for her economic
Will Oracle take the matter to the High Court? Perhaps, but we
consider it unlikely that the general damages decision would be
overturned. There has long been a chorus that sexual harassment
damages don't meet community standards. Now that the Full
Federal Court has responded, we don't think the High Court
We've entered a new and more costly era of sexual harassment
claims. You've been warned.
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quite proud of it really.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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