Sexual Harassment met with Aggravated Damages

Victoria Quayle ||

Recently, the Tasmanian Anti-Discrimination Tribunal (“the Tribunal”) in Lucy Orchard v Frayne Higgins [2020] TASADT 11 (1 September 2020) made an aggravated damages order against a Toll Transport courier for sexually harassing a Sanity store manager and then serving her with a retaliatory defamation letter after she lodged an internal complaint about his behaviour.

Sexual harassment defined

Under s28A of the Sex Discrimination Act 1984 (Cth), a person sexually harasses another person, if:

  1. the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; and/or,
  2. engages in other unwelcome conduct of a sexual nature in relation to the person harassed.

The reasonable person test applied in these circumstances, requiring assessment of whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated, or intimidated.

A non-exhaustive list of circumstances that may be considered include:

  • age
  • sexual orientation
  • gender identity
  • marital or relationship status
  • disability status
  • religious belief
  • any other relevant circumstance

The Claim

The Sanity store manager claimed that the Toll Transport courier had engaged in behaviour of a sexual nature, which included slapping her on the bottom, repeatedly calling her “Juicy Lucy” and asking her on numerous occasions about her relationship status. The manager noted how the name in particular made her feel uncomfortable because of ‘sexual connotations and overtones attached’.

When the courier was spoken to by the store’s manager and assistant manager, he responded with laughter. He did not deny the conduct but remarked “don’t tell your boss I did that”.

Three years later, these incidents were brought to the attention of a Sanity area manager who instigated an investigation into the courier’s conduct by Toll. After the store manager received an “[un]pleasant” phone call at the store from the courier’s wife, she requested that Sanity drop the complaint “because she did not feel safe [and] did not want to cause trouble”.

Sometime later, the store manager received a letter from the courier indicating that he was considering a defamation claim against her. After being prescribed anti-depressants by her doctor and leaving her job at Sanity, the then ex-store manager lodged her claim with the Tribunal.

The Outcome

The Tribunal accepted the store manager’s evidence of all alleged conduct by the courier, including the bottom-slapping, which was supported by accounts from other staff members. Although the Tribunal Member found nothing “overtly sexual” in the name “Juicy Lucy”, evidence of the context in which it was used distinguished the remark as unwelcome, with sexual connotations.

The courier’s defamation letter, whilst not amounting to victimisation in the circumstances, was recognised as a principal aggravating feature – “it [was] disgraceful to send a letter to a young woman demanding she retract her complaint, apologise and pay $30,000 in circumstances where the allegation was true”.

The courier was ordered to pay $20,000 to the store manager and $25,000 in compensation for “the injury incurred as a consequence” of his conduct.

Whilst sexual harassment continues to front courts and tribunals in 2020, it is clear that there is work still to be done. Employers must have effective anti-discrimination and harassment policies in place to guide fair and lawful investigation processes if allegations of this nature are raised.

To coincide with such policies, it is imperative that employees participate in bullying and harassment training to ensure that they are clear on what does and doesn’t constitute bullying or harassment of any kind, and how to report this behaviour  to the employer.

If this article raises any questions for you, please do not hesitate to reach out to a member of Coleman Greig’s Employment Law Team, who would be more than happy to assist you.

Share:

Send an enquiry

Any personal information you provide is collected pursuant to our Privacy Policy.

Categories
Archives
Author

More posts

SafeWork NSW
SafeWork NSW releases new strategy to address psychosocial hazards

On 22 May 2024 SafeWork NSW introduced a new strategy to address psychological and psychosocial hazards. The SafeWork NSW Psychological Health and Safety Strategy 2024-2026 establishes new supports for employers regarding their duties in preventing psychosocial harm in the workplace.

roles in the strata scheme
Understanding roles in the strata scheme

A strata scheme is a building or group of buildings that have been divided into lots which can be apartments, villas, offices, units or townhouses. This will be articulated in the strata plan.

Airbnb home
Can I put my home on Airbnb?

Airbnb is a form of short-term rental accommodation. To add your property to Airbnb in NSW, you are required to meet several laws and regulations governing short-term rentals.

liquidators required to seek approval
When are liquidators required to seek approval to retain legal counsel?

When does a liquidator (or the company he or she is appointed to) need court, creditor, or committee approval to validly retain a solicitor to act in a liquidation matter which is likely to extend for longer than three months?  The answer to this question has only recently been settled.

Proposed changes to building
Proposed changes to building and construction law in NSW

The Building Bill 2022 (the Bill) is the key avenue through which the NSW Government has proposed to reshape the culture of the building and construction industry by eliminating poor performance and improving the quality of building statewide.

Dismiss an employee
Can you dismiss an employee who fails to return to the office?

Slowly but surely, most employers are requiring employees to return to the office for at least a portion of their working week. Some employers continue to struggle with employees resistant to returning to the office or those who have an expectation that they can continue to work from home whenever it suits them.

Phoenixing in Construction
New powers to combat phoenixing in construction

The rise of phoenixing in the building and construction industry in Australia in recent years has proved a significant challenge to regulators. Mismanagement of time or cashflow can quickly propel businesses into insolvency.

© 2024 Coleman Greig Lawyers  |  Sitemap  |  Liability limited by a scheme approved under Professional Standards Legislation. ABN 73 125 176 230