Our previous alert concerned the importance of employers having
up-to-date and robust anti-discrimination and anti-harassment
policies which take direct account of Australian legislation.
Ms Richardson proved her case, and had been awarded damages for
non-economic loss and damage, essentially "pain and
suffering" and "loss of enjoyment of life" of
$18,000. This was within the "standard range" of
$12,000-$20,000 for such damages, well established in previous
discrimination cases. There had been larger awards of damages,
$90,000 - $100,000, in cases where the complainant could prove
substantial and demonstrable psychological or medical problems
arising from the harassment, but these cases were outside the more
common run of cases where the "pain and suffering" and
"loss of enjoyment of life" components fell short of that
Ms Richardson appealed against the level of damages awarded.
Ms Richardson's damage consisted of distress and humiliation
at the actions of the fellow employee, further distress and
humiliation caused by the need to continue to deal with the
offending employee (as a result of Oracle keeping the employee in a
team within which she needed to have contact with him, albeit only
by phone, while her claim was being investigated), damage to her
relationship because of the distress caused by the harassing
behaviour, and a need for counselling. The distress occasioned
noticeable change in Ms Richardson's demeanour and physical
symptoms and a "not insignificant" adjustment disorder
with mixed features of anxiety and depression, which lasted as long
as Ms Richardson continued to be employed by Oracle. The Full
Federal Court acknowledged that this damage was less severe than in
the previous cases outside the general run of damages awards.
However, the Court reassessed the general range of damages
appropriate in discrimination cases. The Court then concluded that
discrimination cases had become stuck in a time warp, because
awards of general damages in other areas had increased
substantially since these parameters were set, back in the 1980s,
and community expectations of compensation in such a case had also
increased substantially. The Full Federal Court decided that Ms
Richardson's case merited general damages of $100,000. It
follows that in cases with severe demonstrable personal or
psychological injury, general damages of substantially more will
now be possible.
This means that the general area of discourse for damages, where
sexual harassment is proved, will be substantially above the modest
level which has applied to date. This emphasises the
importance for employers of having their houses in order if they
are to avoid vicarious liability for the conduct of an employee by
showing that they have done everything reasonably practicable to
avoid such conduct in the workplace. This means having
robust and up-to-date policies, sufficient training on and
communication of those policies to employees, and prompt and
effective complaint-handling processes.
Failure to do so will mean substantially greater exposure to
damages, should a claim of sexual harassment arise.
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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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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