Anti-discrimination tribunals and courts are beginning to order
more generous payouts
Anti-discrimination tribunals are increasingly prepared to order
generous awards for damages.
In the recent decision of Tan v Xenos (No 3)
(Anti-Discrimination)  VCAT 584 the Victorian Civil and
Administrative Tribunal (VCAT) found that Dr Chris
Xenos had sexually harassed Dr Caroline Tan in breach of
anti-discrimination legislation. Dr Tan was awarded $100,000 in
damages, considered significant in this jurisdiction.
In the associated ruling of Tan v Xenos
(Anti-Discrimination)  VCAT 1273, VCAT also ordered the
Dr Xenos to pay some of the costs Dr Tan incurred in the lengthy
As part of her training to be a neurosurgeon, Dr Tan was
employed as a neurosurgical registrar at the Monash Medical Centre.
From early August 2004, she moved into a surgical team led by Dr
In December 2004, Dr Xenos started inviting Dr Tan to his
private rooms. On 15 February 2005, Dr Tan accepted such an
invitation. At this meeting, Dr Tan alleged that Dr Xenos sexually
harassed her by embracing her, kissing her on the lips, putting his
hand down her breast, pinning her against the table, exposing
himself and asking her to perform a particular sexual act.
Dr Tan lodged a complaint with the Human Resources Department of
the Medical Centre in early 2006. She also made a number of less
formal complaints to some of her colleagues after the incident.
Eventually, she lodged a complaint in VCAT. Dr Xenos denied the
incident took place.
Under section 87 of the Equal Opportunity Act 1985 (Vic) a
person must not sexually harass another person at a location that
is a workplace for both of them. Sexual harassment includes making
an unwelcome sexual advance or engaging in unwelcome conduct that
is of a sexual nature.
Judge Harbison concluded that it was more probable than not that
the alleged incident took place. The evidence, including that of Dr
Tan making a number of complaints following the incident, was
consistent with the complaint. It was not consistent with Dr
Xenos' submission that the story had been fabricated because of
Dr Tan's unsatisfactory performance as a neurosurgeon and her
knowledge of likely failure in her training.
In the result, VCAT awarded substantial general damages in the
amount of $100,000. The damages award reflected on a financial
basis the hurt that Dr Xenos' act caused Dr Tan. VCAT also
disavowed the notion that damages awards in the anti-discrimination
jurisdiction should be lower than those awarded in comparable cases
in other courts.
While there was no medical evidence as to how the incident had
affected Dr Tan, Judge Harbison found that Dr Tan had
"suffered acutely", was "terribly affected" by
the harassment and had reacted, "unusually severe(ly)" to
it "as a gross violation of her body and... trust". What
is more, while Judge Harbison considered the incident was not the
"worst one (could) imagine", Dr Xenos was in a powerful
position in which he had "great influence" over Dr
Tan's future career and qualification. she also found Dr Xenos
had "deliberately and falsely denied the harassment" and
sought to impugn Dr Tan's character. She noted that Dr
Tan's capacity to enjoy her profession would be
In addition to the significant damages award, Dr Xenos was
ordered to pay one-third of Dr Tan's taxed costs.
VCAT can make costs orders when it is fair to do so, based on
the consideration of a number of factors. In this case, costs were
awarded because the hearing had been "unnecessarily
lengthened". Many days had been spent on hearing evidence of
Dr Tan's professional capabilities, introduced to support Dr
Xenos' claim that the complaint was fabricated - a claim found
to be unsubstantiated.
Damages awards in sexual harassment matters have by and large
been fairly modest and contained. However, in recent times there
has been an emerging trend of anti-discrimination tribunals and
courts ordering more generous payouts.
In light of this decision in Tan and other like cases
that are expanding the range of damages available in this
jurisdiction, it is important that employers remain vigilant in
preventing and addressing sexual harassment claims.
The policies and procedures of an employer need to, in a
practical and real sense, be understood and adopted by staff from
the top down. This means that those who are accountable within the
organisation need to know how to identify when there is an issue
(whatever the level of severity of the conduct) and understand what
action should be taken in the circumstances. To that end, due
diligence should be exercised regardless of the rank, seniority and
standing of the person complained of. A failure to do so puts an
organisation at significant potential risk.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).