After-hours sexual harassment was work related, Supreme Court Judge finds

By Portner Press on July 5th, 2019
  1. Bullying, Harassment & Discrimination
  2. Workplace Harassment

A process worker at a food packaging company has fought for four years to claim compensation for workplace sexual harassment, and her battle is not over yet.

In September 2015, the Simplot Australia employee filed a claim for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) for anxiety and depression she suffered caused by sexual harassment, bullying and threats she had endured by two supervisors.

Among other things, she alleged that the supervisors had:

  • made repeated requests for her private details;
  • made unwelcome advances, including asking to marry her;
  • touched her inappropriately;
  • followed her when she left work;
  • called her derogatory names and bullied her;
  • threatened to kidnap her; and
  • sexually assaulted her.

The worker alleged the sexual assault took place at a train station when one of the supervisors came up behind her and kissed her on the lips. She said “leave me alone”. He said “I like you. I want to give you a kiss”.

She then pushed him to get away. Her bag fell to the ground and she picked it up and ran away, getting onto a nearby bus to escape him.

However, Simplot rejected her workers’ compensation claim, denying that any of these events had taken place.

When the worker appealed, Magistrate Philip Ginnane said he was satisfied that the supervisor had made “unwelcomed advances” at the train station, but was not satisfied that the other incidents had occurred.

He found that the worker did have “feelings of sadness and upset”, but she had not suffered a psychiatric injury and was not satisfied that “work conduct was a cause of an injury”.

Magistrate Ginnane dismissed the appeal.

The worker appealed again, and in the Victorian Supreme Court decision this month, Justice Melinda Richards found that Magistrate Ginnane “did not apply the correct test in finding that the train station incident was not work related”.

“Having found one significant incident proved, the Magistrate should have considered whether [the worker] suffered the claimed injury, whether the train station incident was a cause of that injury and, if so, whether the injury arose out of her employment,” Justice Richards said.

“Instead of that analysis, there was only the bare finding that the train station incident was not work-related. The statutory test, which requires a causal connection between injury and employment, was not applied.

“Had the correct test been applied, it was open to the Magistrate to find that any injury resulting from the train station incident arose out of [the worker’s] employment, despite having occurred outside the workplace and after work hours.

“The evidence was that [the worker] knew [the supervisor] only as her workplace supervisor; there was no private element to their relationship.

“The incident took place at the Ascot Vale train station, close to the workplace, immediately after the conclusion of a shift, on [the worker’s] way home from work. She telephoned a co-worker immediately after the incident, rather than calling her partner or someone from outside the workplace.

“Following the incident, [the worker] continued to work at Simplot in [the supervisor’s] presence and under his supervision. These are all indications that the train station incident had its origin in the employment.”

Justice Richards also found that Magistrate Ginnane had disregarded “considerable evidence” that the worker was suffering from anxiety and depression following the incident.

“A magistrate is not bound to dismiss a medical opinion merely because the history of events that informed the opinion is not proved in full at the hearing,” she said.

“Where, as here, medical reports have been tendered without their authors being cross-examined, those reports form part of the evidence that must be evaluated, in particular in determining questions of injury and cause.

“All of the medical evidence must be considered in order to determine ‘what was the burden of all the evidence in the case?’”

Justice Richards allowed the appeal and remitted the case for rehearing by a different magistrate.

Are you equipped to manage sexual harassment in your workplace?

Find out by reading chapter H2 Harassment in the Health & Safety Handbook.

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