Australia: Employee Personally Liable For Sexual Harassment

In a recent decision, the Federal Magistrates Court of Australia (Court) awarded damages against an employee personally in relation to a sexual harassment complaint.

In early May 2000, Ms Charlotte Bishop was employed as a nightclub waitress. Mr Sherif Takla was a chef and a fellow employee for the purposes of the Sex Discrimination Act 1984 (Cth) (Act).

Ms Bishop lodged a sexual harassment complaint with the Human Rights and Equal Opportunity Commission in May 2002. Ms Bishop alleged that Mr Takla had sexually harassed her over a period beginning early in her employment until she left her employment in May 2001. The alleged unlawful conduct included:

• persistent requests to accompany Ms Bishop on her weekend horse riding activities

• inappropriate unwelcome remarks with sexual connotations and of a suggestive nature

• unwelcome remarks of an overtly sexual nature

• intrusions into Ms Bishop's personal space, and

• unwelcome physical contact including touching of Ms Bishop shoulders, back and buttocks.

Ms Bishop alleged that after making a written and verbal complaint to Mr Tony Tzenos (a director of the employer), she was not given any further shifts. She considered her employment effectively terminated. Ms Bishop provided detailed medical evidence of her chronic post traumatic stress disorder and her ongoing psychiatric treatment.

Ms Bishop settled the proceedings against her employer and Mr Tzenos following a mediation of Ms Bishop's complaint. The Court noted an agreement by the parties that any award against Mr Takla would be reduced by the amount of the settlement, particulars of which had been provided to the Court in a sealed envelope.

The Court did not accept Mr Takla's denials and excuses in relation to the alleged unlawful conduct.

The Court found that much of Mr Takla's conduct did satisfy the relevant definition of sexual harassment, ie unwelcome conduct of a sexual nature occurring in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that Ms Bishop would be offended, humiliated or intimidated.

Accordingly, the Court declared that Mr Takla unlawfully sexually harassed Ms Bishop in breach of the Act. The Court awarded Ms Bishop over $33,000 damages based on an assessment of general damages of $20,000, loss of income, medical expenses and interest. The previous settlement amount (minus the component in respect of Ms Bishop's legal costs from the previous proceedings) was then deducted from the damages awarded against Mr Takla. As a result, Mr Takla was ordered to pay over $24,000 in damages plus Ms Bishop's legal costs of the Court proceedings.

When considering its obligations under equal opportunity legislation and, in particular, provisions in relation to sexual harassment:

• an employer should take all reasonable steps to prevent its employees from engaging in conduct that may constitute unlawful sexual harassment

• examples of 'reasonable steps' include establishing an equal opportunity policy in the workplace, providing regular equal opportunity training for employees and implementing an appropriate complaints procedure

• an employer should emphasise to its employees that they may be personally liable for damages and legal costs if they engage in unlawful sexual harassment

• there appears to be a willingness on the part of the Court to apportion damages on the basis of an agreement between the parties.

Clients with any queries regarding the decision and its implications should contact one of the Freehills ER partners.