A female hotel employee in Queensland has been awarded $313,000
in damages for sexual harassment and assault she was subjected to
in her bed by the hotel caretaker. The case rings a warning to
employers that they need to take reasonable steps to prevent
employees engaging in or being exposed to such conduct.
QCAT Member Ann Fitzpatrick found that the caretaker's
behaviour constituted sexual assault and a breach of the
Anti-Discrimination Act 1991, because the caretaker
subjected the applicant to unsolicited acts of physical intimacy
and engaged in unwelcome conduct of a sexual nature with her, and
"A reasonable person would have anticipated the
possibility that the applicant would be offended, humiliated or
intimidated by the conduct".
The applicant and the caretaker resided in hotel-provided
employee accommodation. At 5AM on 1 December 2010, the applicant
awoke to find the caretaker in her bedroom, naked and standing over
her. He touched her body including her upper thigh and groin and
attempted to remove her underpants. The applicant asked him to stop
and to leave the room, and broke down crying. Before leaving, the
caretaker said: "I'll let you get changed".
He then returned and said: "this can be our little
secret". At the time of the assault, the applicant was 21
years of age, and the caretaker was 70.
One of the main issues in dispute was the vicarious liability of
the hotel. The applicant submitted that the hotel was liable
because: the sexual assault occurred during the caretaker's
on-call period, in the course of his work for the hotel, at his
place of work, and the applicant was staying in the unit provided
for employees; but for her employment, she would not have been in
the unit at the time the sexual assault took place.
The hotel contended that the applicant was merely a
"guest" of the caretaker. Member Fitzpatrick
rejected the respondents' submissions and found that there was
"no evidence that the caretaker actively extended a
personal invitation to the applicant to live in the unit, as one
would normally do with a guest", and ultimately, because
the caretaker and the applicant resided in hotel-provided employee
accommodation, this constituted a place of work.
The tribunal found that the hotel was vicariously liable for the
caretaker's actions. In its defence, the hotel submitted that
there was "nothing it could have done" to avoid the
assault. Member Fitzpatrick rejected that as a defence. It was
"beside the point" that the hotel did not know
what the caretaker might or might not do in his own home: the unit
was also a place of work, and the hotel had not taken any steps to
inform its employees of their legal obligations and provide
training on anti-discrimination.
The applicant gave evidence of her psychiatric injuries as a
result of the assault, including PTSD and a depressive illness,
which rendered her unfit for further work until mid-2015. The
tribunal heard evidence from two medical experts.
The respondents submitted that the applicant had not been
truthful in her evidence in relation to her suffering. In a bid to
attack her credibility and downplay the effects of the
caretaker's sexual assault, the respondents relied on medical
evidence of the applicant's complex personal history relating
to past mental conditions, recreational drug use, and an assault by
a former boyfriend. However, Member Fitzpatrick rejected the claims
that adverse findings should be made about the applicant's
credibility to reduce her compensation: "I do not think
the Applicant had the guile or wit to engineer her claim in the way
asserted". The applicant's assault was
"serious and shocking" and resulted in four
years of "severe and prolonged ... [and]
This decision outlines the potential pitfalls of an employee making public comments on Facebook outside of work hours.
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