A recent Federal Court decision has delivered the highest general damages ever awarded in an Australian sexual harassment case. This case illustrates the importance of taking proactive measures to prevent harassment from taking place.
In a landmark Federal Court ruling, a former restaurant supervisor has been awarded $305,000 after being subjected to repeated sexual harassment by a colleague.
The court heard that the colleague showed the restaurant supervisor inappropriate videos at work, made intrusive comments about her sex life and asked her extremely personal and suggestive questions.
Alongside her sexual harassment claim, the supervisor also alleged she had been subjected to harassment on the grounds of sex, marking the first time the laws requiring employers to manage this form of harassment have been tested.
While her claim of harassment on the ground of sex was dismissed (more on that later), the court confirmed her colleague's behaviour met the legal threshold for workplace sexual harassment under the Sex Discrimination Act.
The total damages included $130,000 for past and future economic loss, $15,000 for victimisation and aggravated damages linked to conduct during the trial, and a record $160,000 in general damages – the highest ever awarded in a sexual harassment case in Australia.
"This is yet another lesson – if indeed one was needed – on the importance of taking reasonably practical steps to to eliminate sexual harassment and harassment based on sex in the workplace," says Michael Byrnes, Partner at Swaab.
Conduct did not need to be physical to constitute sexual harassment
Since December 2022, the Sex Discrimination Act has imposed a positive duty on employers to actively prevent sexual harassment and harassment on the grounds of sex.
This means it's no longer enough to simply respond to complaints after the fact – businesses must take proactive and meaningful steps to stamp out these behaviours before they occur.
The court's decision in this case is an important reminder that inappropriate conduct does not need to be physical to be considered harassment, says Byrnes.
"Sexual harassment is conduct directed towards an individual that has a sexual element or nature to it, where a reasonable person would anticipate the possibility that the recipient would be offended, humiliated or intimidated by the conduct," he says.
"In this case, he wasn't propositioning her or trying to engage in any physical contact with her – it was in the form of questions about her sex life, comments about sexual activity and showing her pornographic videos... and that conduct was found to meet the threshold of sexual harassment."
The court also found the respondent's conduct during the trial, including unfounded claims that the victim's ability to keep working with him meant she wasn't offended, to have caused further harm beyond the original harassment.
The fact that this behaviour exacerbated her suffering and was not a genuine part of the defence led the court to award her $5000 in aggravated damages.
This serves as a reminder that conduct during legal proceedings can create extra liability, and employees should be made aware their behaviour in and around hearings can influence their outcome.
"There's no point having the right policies and training if the workplace culture doesn't reflect them." – Michael Byrnes, Partner, Swaab
First consideration of harassment on the grounds of sex
This case also marks the first test of the 2022 legal provisions related to harassment on the grounds of sex. Unlike sexual harassment, this refers to demeaning behaviour connected to a person's sex, even if it isn't sexual in nature – for example, making sexist jokes or comments about a colleague.
Legislation requiring employers to address and prevent this form of harassment were introduced as part of the government's Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022.
In this case, while the court acknowledged that the workplace culture was rife with crude remarks about women, it ruled that her claim didn't meet the legal threshold because the conduct wasn't directed at her personally.
"There were some pretty graphic things said, but she wasn't part of the conversation – she overheard it, and none of the comments were about her," says Byrnes.
"The judge held that in order to make a finding that there had been harassment on the basis of sex, the relevant conduct – which he accepted was boorish and offensive – needed to relate to her in some way. It didn't necessarily need to be directed at her, but it did need to relate to her."
However, Byrnes adds that offensive discussions at work can still create legal liabilities for employers, even if the comments aren't related to a particular person.
"There's a new provision relating to a 'hostile work environment on the basis of sex'," he says. "That wasn't argued here, but if you've got that sort of banter going on, it could be seen as creating a hostile work environment."
Conversations like this may also signal a potential risk of sexual harassment, triggering an employer's obligation to take preventative action under their positive duty.
Read HRM's articleon when workplace banter crosses the line into bullying or harassment.
Has your business taken "all reasonable steps" to prevent sexual harassment?
Cases like this one provide valuable guidance on what it takes for employers to genuinely meet their obligation to take "all reasonable steps" to prevent sexual harassment.
"That is a very high bar – it's not just reasonable steps, it's all reasonable steps," says Byrnes. "That includes measures like having a well-drafted sexual harassment policy and thorough training in that policy.
"Some global companies have global sexual harassment training packages that originate from the US or the UK or Asia. That's not good enough – it needs to be local sexual harassment training, preferably in person, which focuses on the obligations under the Sex Discrimination Act in respect of sexual harassment, harassment on the basis of sex and hostile work environments. Bear in mind that, ultimately, you may have to convince a judge that the training was sufficient."
Byrnes also recommends making it clear in relevant policies that an employer can be vicariously liable for the behaviour of the employee.
"The rationale for this is that if employees know their employers can be on the hook for their bad behaviour, it signifies how seriously the employer will take it," he says.
However, policies and procedures are only half the battle. To make them effective, employers need to stay alert to the lived experience of the workplace.
"There's no point having the right policies and training if the workplace culture doesn't reflect them," says Byrnes. "And for workplaces where there is a lot of banter that is highly sexualised, that is conduct that needs to be addressed."
All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.
For further information please contact:
Michael Byrnes, Partner
Phone: + 61 2 9233 5544
Email: mjb@swaab.com.au
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.
