Sexually harassed worker wins $150K in damages

By Portner Press on March 12th, 2019
  1. Bullying, Harassment & Discrimination
  2. Workplace Harassment

 

Workplace sexual harassment can lead to sexual assault.

Especially if a manager directs a worker who sexually harassed a female colleague to drive her home when she is feeling sick.

This is what happened at Melbourne-based company, Parker Manufactured Products, when it failed to take appropriate steps to protect one of its workers.

When a young female staff member started working there, she was subject to unwelcome sexual attention from a male co-worker who addressed her as “sexy, honey, baby and sweetie”.

He would sometimes approach her from behind and massage her shoulders and neck uninvited.

On one occasion, in front of other staff, he approached her from behind when she was leaning over a desk and said “stay there, your ass looks better when you bend over like that”.

Twelve days into her job, she was feeling unwell at work and collapsed. Her manager then directed the same male co-worker who was sexually harassing her to drive her home.

She was then sexually assaulted by him and did not return to work.

Three days later she telephoned her manager and emailed one of the company’s directors, Philip Downing, to report the sexual assault.

“When we arrived at my house he brought me inside and climbed into bed with me. I continuously said “I just want to go to sleep, I am going to be sick”. He moved in and cuddled me from behind and touched me on my breast. I did not want this and I did not consent to this. He was touching my back and tried undoing my bra. He made comments such as “you are so vulnerable, I could do anything to you right now”, and that I was “making him horny”. I groaned in disgust and said “I just want to go to sleep, I am going to be sick”. This constitutes a sexual assault under the Victoria Crimes Act 1958 section 40. It is your obligation to take immediate action on this matter and I look forward to your response,” the email stated.

But the young worker’s suffering did not stop there.

The employer failed to carry out a proper, impartial investigation and instead decided that her allegations were false after “Googling” the definition of sexual assault.

It also doubted that the co-worker, who was not a native English speaker, would have used the word “vulnerable”.

In the hearing, the employer argued that it had taken “reasonable precautions” to prevent the misconduct, as it had a harassment policy as well as a process in place to train new staff in that policy.

The employer claimed that the company was small enough and well supervised enough that any conduct of such nature would have been witnessed and dealt with appropriately by senior management had it occurred.

It also said that the co-worker’s conduct fell outside the scope of his employment.

Victorian Civil and Administrative Tribunal (VCAT) Vice President Marilyn Harbison disagreed.

“Although some evidence was presented by the company as to what it says was an equal opportunity and caring workplace culture, this evidence was presented for the purpose of supporting its argument that the sexual harassment did not occur, rather than making any argument that it was sufficient to establish a defence,” she said.

“In my view it is not of sufficient breadth or depth to establish this defence. There was no credible evidence that the company had taken reasonable precautions to prevent [the sexual harassment from occurring].

“The same can be said of the potential defence that [the co-worker] was acting outside the course of his employment. He was in fact specifically instructed by his superior to drive the [worker] to her home … It thus cannot be said that this incident did not take place in the course of his employment.

Vice President Harbison said it was “alarming that no proper and independent investigation was carried on by the company and that directors of the company such as Jason Downing were prepared to base decisions about whether or not to defend this claim on the basis of uninformed internet browsing”.

The employer also invaded the worker’s privacy.

When she claimed for damages, the directors published the whole of the company’s file on the claim, including witness statements, on the company’s intranet. It was readily available for any staff member to view before their statements were taken.

Vice President Harbison said that the employer did not take a neutral position in this case, even after its own insurance company investigated and approved the claim.

“[Jason Downing] sent some of the content of the websites he visited to the company’s WorkCover insurer in an effort to persuade the insurer that [the worker’s] claim was fraudulent,” she said.

The directors did not use a solicitor, which they had access to, but instead decided to represent themselves in the hearing and personally cross examine the sexually assaulted worker, in a way that Vice President Harbison said was “inappropriate”.

They accused the worker of deliberately faking her medical symptoms to create a situation where she could be taken home by the co-worker, which Harbison said was “illogical”.

The directors also suggested that her claim wasn’t credible as she didn’t pursue a police complaint.

Vice President Harbison rejected this.

“It is common knowledge that many persons who are victims of sexual assault are not prepared to go through the trauma of giving evidence in a criminal trial. Philip Downing pressed the applicant to make a complaint to the police. He contacted the police himself about this matter and appeared to be annoyed that the applicant took so long to make a police statement,” she said.

“He appears to have made a decision that if the applicant was not prepared to go through with a criminal trial then she must be giving a false account.”

“His assumption to that effect is untenable and I reject it.”

She noted that they “had no real way of knowing one way or the other if the complaint was true”, but had done their best to “actively support the [co-worker] and blacken the character of the [female worker]”.

Vice President Harbison ordered the employer and co-worker to jointly pay $130,000 in damages for the pain and suffering caused to the worker.

She also ordered the employer to pay the worker an additional $20,000 in aggravated damages.

Employers can’t pay lip service to workplace harassment

Are you doing everything you must do to protect your workers?

If you’re not 100% sure, now is the time to read up on chapter H2 Harassment in the Health & Safety Handbook.

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