Employers have learnt an important lesson about their obligations regarding the management of complaints of sexual harassment.
A recent decision of the Victorian Civil and Administrative Tribunal (VCAT) in Oliver v Bassari [2022] VCAT 329 an employer was required to pay $150,000.00 in damages to a worker who was sexually harassed at work.
Facts of the Case
The employee was engaged as a beauty therapist and was employed for approximately 10 months in 2018. Throughout her employment, she was sexually harassed by a co-worker which included being subjected to inappropriate comments and physical contact. The employee resigned as a result of the harassment.
The employee brought a claim against her employer under relevant legislation and claimed that her employer failed to take reasonable precautions to prevent the harassment from occurring.
During the hearing, the employer conceded that the Applicant had first made complaints in or around April or May 2018, however, attempted to persuade the Tribunal that the complaint was dealt with immediately. The employer gave evidence that the offending employee was instructed to avoid physical contact with the Applicant and to respect all the employees.
VCAT did not accept these arguments and made a finding that the employer’s response was “manifestly inadequate”. The Victorian legislation required the employer to take reasonable precautions to ensure that its workers did not contravene legislation and engage in conduct that would amount to sexual harassment.
In Queensland, the Anti-Discrimination Act 1991 states that an employer will be liable for its employees unless the employer can demonstrate that it took reasonable steps to prevent the worker from engaging in such conduct[1].
What constitutes reasonable steps?
It is essential that all employers take reasonable steps to ensure that their employees understand their obligations as employees through effective policies and training. Employers must have written workplace policies on anti-discrimination and sexual harassment and ensure that all staff understand them. It is recommended that employers have regular relevant training for all staff to understand their obligations and to keep relevant training records.
It is also important that employers have a clearly documented internal complaints procedure that is transparent, confidential, accessible and people feel safe to use so that any issues and complaints can be addressed in a timely manner. It is not a requirement for complaints of sexual harassment to be in writing and it is essential that employers take action each and every time an allegation is made.
It is also good practice for employers to have a zero tolerance stance on these types of behaviours. A failure to do so could ultimately cost you significantly.
If you would like any advice in relation to your policies, procedures or training please give us a call.
[1] Section 133(2) Anti-Discrimination Act 1991