A Pasadena Foodland supermarket assistant has been awarded $30,000 in damages for psychological harm and suffering. Deputy President Judge Farrell of the South Australian Employment Tribunal said that the harm was exacerbated by the supermarket's failure to properly investigate the worker's sexual harassment complaint.
It was held that the employer and the assailant were jointly and severally liable to pay damages for their breaches of the State Equal Opportunity Act 1984.
Facts
The worker claimed that, in May 2017, a new head chef repeatedly touched her inappropriately, including when he unnecessarily walked past her station and put his hands on her lower back and hips.
Approximately two weeks after he started, she claimed that he pressed his body hard up against hers on three occasions and slid his hand over her buttocks and down towards her vagina on one occasion.
The worker told the Deputy President that she complained to two managers on the day the incident occurred. The two managers looked at the CCTV footage, but nothing eventuated even though one of the managers said he had 'seen something'.
A month later, the worker made further complaints. A manager told her it was her fault her complaint wasn't taken seriously. The duty manager eventually escalated the issue and a general manager found the allegations had not been substantiated and told the worker there would be no further action.
Decision
Deputy President Judge Farrell accepted the worker's accounts of the sexual harassment. She also accepted that the CCTV footage, which was deleted two weeks after the incident, was consistent with her account of pulling away from the head chef, even though it did not show a 'clear cut instance of sexual assault'.
She rejected the employer's submissions that it had fulfilled its obligation to enforce its sexual harassment policy and that it was not vicariously liable for the head chef's actions.
In coming to the decision, the Deputy President noted that:
- because the two managers initially dealing with the complaint had not taken a detailed statement from the worker, they would not have been in a position to understand what they observed on the CCTV footage
- the employer failed to:
-
- obtain written statements
- keep contemporaneous records
- maintain CCTV records and to have a policy in place to preserve CCTV footage when an incident such as this arose
- appropriately train staff to deal with workplace sexual harassment so that the worker was forced to raise her complaint with multiple people.
Employers need to ensure that they have adequate internal investigative procedures in place to deal with employee complaints, including the retention of CCTV footage relating to any investigations, or they may be held jointly and severally liable for damages.
Evans v Ikkos Holdings Pty Ltd and Ythos Holdings Pty Ltd and Ikia Holdings Pty Ltd T/As Pasadena Foodland and Crugnale [2019] SAET 222
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.
