IN BRIEF - GLS V PLP (HUMAN RIGHTS) [2013] VCAT 221

A recent matter before the Victorian Civil and Administrative Tribunal (VCAT) has resulted in a large award of damages to a female graduate lawyer who was sexually harassed during her practical legal training placement.

BACKGROUND

VCAT suppressed the identities of the parties, referring to the lawyer as Ms GLS and the employer as Mr PLP. GLS had commenced her practical legal training placement with PLP in May 2011 and the sexual harassment started soon after.

GLS alleged 14 incidents of sexual harassment throughout the period of employment, these included: that PLP had repeatedly propositioned her for sex, made persistent sexual comments and advances, engaged in unwelcome massage and touching, showed her a pornographic video of himself having sex with a prostitute, ogled her breasts, attempted to sexually touch her, and had sent her a photo of himself naked.

The harassment culminated in PLP assaulting GLS in a car park in July 2011 and summarily dismissing her shortly thereafter. After GLS lodged her VCAT sexual harassment application, PLP attempted to block her admission as a lawyer claiming that she was not a fit and proper person.

THE DECISION

Was GLS an Employee?
The first threshold issue was whether GLS was an employee and thus protected by the former Equal Opportunity Act 1995 (VIC) from sexual harassment.

Justice Garde concluded GLS was an employee because she was paid firstly $50 then $100 per day to work with PLP. Her considerable industry experience meant she was value adding to the firm and PLP summarily dismissed her thereby showing he viewed her as an employee. Furthermore, her work was supervised by PLP and she was put forward to clients as working at the firm.

Sexual Harassment
PLP gave evidence that at times the advances were welcomed and that some alleged behaviour did not occur. PLP had set up and used video and audio recording devices in his office and such recordings were used as evidence in the matter. Justice Garde disapproved of these actions citing PLP's standing as a lawyer and the consequences if GLS had at some point consented to any of the requested sexual conduct, i.e. that PLP would have recorded the conduct without her permission for his own private viewing later.

Justice Garde found the examples of sexual harassment included conversations secretly recorded by PLP which showed he "hounded and pressured" GLS for sex and sexual favours. His Honour accepted GLS's evidence as to her reaction to the advances and requests of PLP. Further the video and audio evidence supported her evidence that the conduct was not accepted. Justice Garde accepted that 11 out of the 14 alleged incidents were sexual harassment.

His Honour rejected PLP's claim that GLS could have refused his physical groping and requests for sex with more force and at an earlier time. Justice Garde said the obligations of employers were clear;

If an employer does engage in the sexual harassment of an employee, it is not appropriate to criticise [the employee] on the basis that she should have handled the sexual harassment better or should have stormed out of the room or escaped from the harasser earlier. It is enough if the [principal's] conduct constitutes sexual harassment under the Act,

Furthermore, GLS was in a difficult situation as she was dependent on PLP to sign off on her practical legal training placement and she was good friends with PLP's partner.

The Damage
Evidence was taken from two psychologists who considered GLS was suffering from post traumatic stress disorder and that the causes included; the sexual harassment, incident in the car park, an incident where PLP tried to grab GLS's breasts and the fact that she was not practising as a lawyer. His Honour concluded,

Her social and occupational functioning is impaired. She suffers from embarrassment, revulsion, guilt, social withdrawal, sleep disturbance and increased appetite.

On the basis of this evidence Justice Garde ordered PLP pay $100,000 in damages to GLS.

For further information please contact:

Matthew Hall, Partner
Phone: + 61 2 9233 5544
Email: mdh@swaab.com.au

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