The case highlights the need for employers to take a proactive approach in sexual harassment training and to review their complaints handling procedure. Key steps could include the following:
- Ensure you have a written sexual harassment and anti-discrimination policy in place. Keep a record that employees have read and understood the policy.
- Conduct regular (at least annual) training regarding sexual harassment and anti-discrimination. This could include, for example, an employee questionnaire. Keep a record of the content of the training and employee attendance.
- Review your complaints handling procedure and ensure managerial staff are appropriately trained regarding receipt of complaints.
In more detail
The EO Act provides that an employer is not vicariously liable for a contravention of the Act by an employee if the employer proves, on the balance of probabilities, that the employer took reasonable precautions to prevent the employee contravening the Act.
VCAT held that the employer failed to take reasonable precautions. First, regarding sexual harassment training:
- 'The employer did not implement any, let alone an adequate, educational programme on sexual harassment issues, monitor the workplace to ensure compliance with its sexual harassment policies or take appropriate steps to communicate its sexual harassment policies to all employees'. For example, the employer could have:
- 'ensured employees received, read and had a sound understanding of the sexual harassment and related policies in the employer's relevant Handbook, for example, by having employees undertake a short questionnaire';
- 'conducted regular but not necessarily frequent refresher training meetings on the Handbook'; and
- monitored the workplace via the CCTV footage it possessed to ensure compliance with the Handbook.
Secondly, regarding its handling of two complaints regarding the co-worker. The employer could have implemented reasonable precautions to prevent the sexual harassment from continuing, such as:
- investigating the sexual harassment complaint;
- warning and threatening to discipline the co-worker;
- providing training to the co-worker regarding sexual harassment; and
- ensuring the co-worker accessed, read and understood the Handbook.
Liability under s 105 of the EO Act
Under s 105 of the EO Act, a person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of the Act. Here, the Applicant argued the employer had authorised the co-worker's conduct, either by its inaction regarding the conduct or the continued rostering of the co-worker with the Applicant.
VCAT did consider scenarios where inaction could amount to authorisation, so long as the perpetrator knows that the person in authority (e.g., a manager) is aware of the sexual harassment. For example:
- where a manager witnesses sexual harassment but the manager subsequently does nothing to prevent it from reoccurring; or
- where the perpetrator is not counselled or disciplined by the manager with knowledge of the harassment.
Such authorisation did not occur here because the perpetrator only knew that the employer was aware of the sexual harassment from a certain date and no conduct occurred after that date. Additionally, after the employer received the complaints it did take some minor action in verbally counselling the co-worker, so it could not be said that the employer authorised the conduct.
The alleged rostering arrangements did not amount to assistance of the harassment, because the employer simply maintained the status quo regarding hours. VCAT noted the outcome may have been different if the employer had increased the time the parties worked together.
The Applicant only sought an award of general damages. The Applicant provided relevant medical evidence and VCAT found the Applicant suffered distress, hurt and humiliation, including the exacerbation of her pre-existing mental health conditions, being anxiety, depression and PTSD. VCAT found that the Applicant was still suffering the effects of the harassment four years later, so accepted the effects would continue long term though diminish overtime.
In reaching the figure of AUD 150,000, VCAT noted:
'this figure … effectively represents less than AUD 70.00 per day compensation over six years, from January 2018 until December 2024, being the period that the Applicant has been and will likely continue to be suffering and dealing with the effects of the sexual harassment. I note this only to demonstrate that the award of AUD 150,000.00 as general damages is, in my view, far from excessive'.