A New South Wales restaurant worker has been awarded $10,000 in compensation after the state’s Civil and Administrative Tribunal found she was sexually harassed at work and the harassment caused her stress and anxiety.
The unnamed worker had been employed as a casual kitchen hand at a restaurant for more than two years when she was approached in a back room by her boss, also unnamed, on July 31, 2012.
The worker told the tribunal she was washing table cloths when her boss stood behind her, telling her “you are doing that correctly”. She said he reached around her and grabbed hold of her breast, which prompted her to push him away and say “no”.
The boss then allegedly attempted to put his arm inside the worker’s t-shirt and said the words “only one”. Again the worker pushed him away and said “no”.
The kitchen hand told the tribunal her boss followed her out of the restaurant to her car, telling her he was sick, offering her $1000, and pleading with her not to tell her 17-year-old daughter who also worked at the restaurant.
After the incident, the employee told her boss she no longer felt comfortable working with him and attempted to discuss with him how she could repay him for a $10,000 loan against her wages, which she borrowed when she first started working at the restaurant.
She said he became “very angry” that she would not return to work and threatened to kill her if she made good on a threat to tell his daughter about what happened.
“I was so frightened at this point and so I got an AVO from the police to protect myself from him,” she said.
While the employer denied the incident occurred and told the tribunal he believed the complaint was motivated by the employee not wanting to pay the money she owed him, evidence was presented to the tribunal from a psychologist that supported the employee’s claims the incident prevented her from finding alternative work for a number of months.
The psychologist’s report also said the incident caused conflict between the employee and her husband, led to the loss of friends and work, as well as ongoing “severe levels of psychological distress, depression, anxiety and general stress”.
The tribunal accepted the employee’s account of the events and found both the employer and his company were liable for conduct that left the employee “offended, humiliated or intimidated”. Both the employer and the company were ordered to pay $5000 each.
Andrew Douglas, partner at M+K Lawyers, told SmartCompany under all anti-discrimination legislation, organisations are held principally liable for the actions of their employees.
However, the vicarious liability can be severed in instances where the organisation has acted to prevent discrimination and harassment, including by implementing policies and procedures, training staff members and remaining vigilant to ensure discrimination and harassment does not occur.
“It’s clear none of those were present in this case,” he says.
However, Douglas says the level of damages imposed against the restaurant and its owner does not necessarily reflect the potential damages in sexual harassment cases since the Oracle judgment in July.
“The most current law was not considered, so the claim reflects the level of damages that would have previously been awarded,” he says.
Douglas says it also appears the employee’s case was presented in a “relatively unsophisticated” manner, with no evidence presented beyond the initial distress and loss suffered. Because of this, the tribunal narrowed the possible level of damages to a once-off incident.
Douglas says the employee could receive a high level of compensation if more substantial evidence was presented, including medical evidence, or if the employee had chosen to pursue an adverse action claim under the Fair Work Act.
“It was the wrong jurisdiction,” he says.
“If an adverse action claim had been presented that she was constructively dismissed because of the sexual harassment, it would have been quite a compelling argument.”
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Eloise is an experienced business journalist and editor, who has held senior editorial roles at SmartCompany since 2014. Prior to joining SmartCompany, Eloise was news editor at Books+Publishing, the trade press for the Australian book industry. Eloise has degrees in media and communications, marketing and business management, and political science. You can follow her on LinkedIn, and Twitter at @ellykeating.
