Australia: Some Recent Decisions Which Stretch the Concept of Sexual Harassment and Employer Responsibility

Last Updated: 19 May 2006
Article by Charlotte Oppy and Nick Ruskin

Vicarious Liability

Employers should beware that the making of a formal complaint is not a precondition to their obligation to prevent harassment. Where, even on an informal level, the employer is aware that potentially harassing conduct is occurring, the employer is on notice of this conduct.

Further, if during this period the employer wishes to successfully rely on the defence that it took all reasonable steps, it needs to ensure that, in line with the wording of the legislation, active steps are being taken to prevent the harassment. This is not the same as taking steps to mitigate the effects of contravention or steps to provide treatment following harassment, and it is certainly not enough to rely on pre-existing harassment policy publications.

In a recent decision the Queensland Anti-Discrimination Tribunal has sent a clear message to employers that they need to take a more proactive role in preventing sexual harassment in the workplace.

In Webb v State of Queensland [2006], the Complainant, Rosalee Webb, sought compensation and an apology from her former employer, the State of Queensland, for sexual harassment suffered at the hands of a co-worker from August 2001 to May 2002. During this time the Complainant was subjected to numerous instances of sexual harassment including unwanted touching, leering, sexual innuendo and causing emails to be sent to her from pornographic websites.

The Tribunal found that unless the Respondent could rely on the defence contained in s133(2) of the Anti Discrimination Act 1991 (the Act), that is, it could prove, on the balance of probabilities that it took reasonable steps to prevent the worker or agent contravening the Act (the Reasonable Steps defence), it would be vicariously liable.

The burden of proving this defence is not discharged lightly and this case shows that the mere existence of a sexual harassment policy, even a carefully drafted one, will not be enough.

While a formal complaint was not recorded by Ms Webb until 14 January 2002, the Respondent was aware that the offending conduct was occurring from October 2001. It was for this period, from October 2001 to 14 January 2002 (the time of the formal complaint), that the State was held liable.

The Tribunal affirmed the New South Wales Tribunal decision of Caton v Richmond Club Limited [2003] that ‘if an employer is made informally aware of potentially harassing behaviour… prior to a formal complaint being made and the employer takes no action until a formal complaint is made, the fact that the employer takes appropriate and commensurate action in response would not be sufficient to avoid liability’.

Indeed the State, as employer, was held to have acted appropriately after Ms Webb’s formal complaint, eventually re-locating the offending co-worker. It was from the period prior to 14 January 2002 they were held to have acted inappropriately since there was no action taken on the part of the employer to prevent contravention.

Despite the fact that during this time there was a detailed and informative sexual harassment policy in existence to which the offending employee was directed, the Tribunal held that the State had not taken reasonable steps to prevent the contraventions which occurred in the period from October 2001 to 14 January 2002 and could not rely on the Reasonable Steps Defence.

Ms Webb was awarded $14,665 in compensation. This included components awarded for general compensation, loss of salary and medical costs.

Sexual Harassment

In another recent decision the Queensland Anti-Discrimination Tribunal found that a declaration of love can constitute sexual harassment.

The case of K v S and N Company involved a complaint made by an employee, Ms K, against her former employer, N company and agent of that company and Second Respondent, Mr S. Ms K alleged that Mr S had sexually harassed her in breach of the Anti Discrimination Act 1991 (the Act).

Ms K gave evidence that during her employment Mr S asked her a number of questions about her personal life, including whether she was still paying off her home and how many children she had and their ages. He also gave her flowers on numerous occasions before telling her ‘I’m falling in love with you and would like you and your children to move in with me’.

The Tribunal found that implicit in this declaration was an unsolicited request for sexual favours in breach of s11 9(b) of the Act. The Tribunal reasoned that by telling someone that you are in love with them and that you want them to move in, you are telling them, by implication, that you want a sexual relationship with them. Further, you are also inviting or requesting them to consider having a sexual relationship with you. As a consequence of this you are implicitly requesting sexual favours of them.

It was also found that the statement was a remark with sexual connotations and amounted to unwelcome conduct of a sexual nature in relation to Ms K, both of which are forms of sexual harassment within ss11 9(c) and (d).

It is not the first time a profession of love has held to be unlawful. In Alekovski v AAA Pty Ltd [2002] Federal Magistrate Raphael found that the Respondent had sexually harassed the Applicant by asking her to go back to his home for a discussion, telling her of his feelings, referring to the Applicant’s relationship with her partner and becoming agitated when the Applicant refused to comply. This, the Tribunal held, constituted unwelcome conduct of a sexual nature.

Arguably the sexual harassment in Alekovski is easier to recognise than in the present case. Of course, it may well have been the actions of Mr S following the declaration that informed the Tribunal’s decision.

Indeed, following Ms K’s decline Mr S reduced Ms K’s pay, made repeated requests for her to work alone with him on weekends in order to complete a backlog of paperwork which practically could have been done during ordinary work hours and eventually threatened to close the business for three weeks if she did not comply. The court was unable to find that this conduct amounted to ‘sexual harassment’. It may be, however, that these actions of Mr S were a motivating factor for the Tribunal in its finding that the declaration was an implied request for sexual favours, a remark with sexual connotations and conduct of a sexual nature. Ultimately this decision appears to stretch the boundaries of what constitutes sexual harassment.

Of course, its not all bad news for would be suitors since the test is a two pronged one. Not only must there be sexual harassment as defined, but the conduct must be engaged in with the intention of offending, humiliating or intimidating the other person or in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

Since the Tribunal found there was no intention on the part of Mr S to offend, humiliate or intimidate, it was a question of whether a reasonable person would have anticipated the possibility that Ms K would be offended, humiliated or intimidated by the conduct.

In answering this question the Tribunal considered those circumstances listed in s120 of the Act including that Mr S was Ms K’s employer, that Mr S was older than her by several years, that Ms K had never given Mr S any cause to consider that she was attracted to him or interested in having a relationship with him, that Mr S was aware of the fact that Ms K was living with another man and that for much of the time she worked for him they were alone together. All this contributed to a finding that a reasonable person, in these circumstances would have anticipated the possibility that Ms K would be offended, humiliated or intimidated by Mr S’s conduct.

The Tribunal also found that Mr S, by asking Ms K how many children she had and how old they were also constituted unlawful requests for information under the Act, that is, asking Ms K questions which required her ‘to supply information on which unlawful discrimination might be based’. This finding might be cause for a rethink about what might otherwise be considered harmless office chitchat.

Ms S was awarded $2,000 in damages. The fact that Mr S accepted Ms K’s response at the time of the sexual harassment and did not sexually harass her again was taken into account.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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