Yet the abuser keeps his job …
A recent sexual harassment case in Victoria has seen a female employee awarded $10,000 in damages after she was slapped on the buttocks multiple times by her manager throughout a period of only 6 months of employment. The abuser, however, ended up keeping his job. As also reported by various media channels such as the the Australian Financial Review (AFR) April 22 – 2022.
The victim, a 35-year-old production coordinator from Hong Kong, claimed that she was subject to seven instances of sexual harassment during her six-month tenure at Gumboots Australia Pty Ltd. The harassment led her to be diagnosed with post-traumatic stress disorder.
Despite the company having gone into liquidation, the woman doggedly pursued her case against her former manager. This saw her lodge a sexual harassment claim with the Victorian Civil and Administrative Tribunal (VCAT). In which she provided compelling evidence of the abuse.
She was subjected to prolonged abuse throughout her employment that meets the definition of sexual harassment under Federal and State anti-discrimination laws. Namely, that the behaviour of the abuser was unwelcome and of a sexual nature. Also, that a reasonable person would anticipate that in the circumstances, the person whom was harassed would be offended, humiliated and/or intimidated.
Let’s look at the details of the case …
The woman details her sexual harassment to VCAT
The first two sexual harassment incidents took place within a month of the woman joining Gumboots Australia in August 2019. Both occurred while she was standing next to her manager, Billy Cheung, who was sitting at his desk.
In the first incident, Mr Cheung patted her on the buttocks when she was leaving his desk. In the second incident, she was facing her manager, and as she turned to leave, he slapped her on the buttocks. The woman said she was shocked by her manager’s actions, as she had never experienced anything like it.
Then in October 2019, the woman’s manager slapped her on the buttocks for a third time, describing the incident thusly:
“[Mr Cheung] was sitting at his work desk. I was standing next to him. We were talking about a container being dropped off by the shipping company. As I was looking through the window next to him, he suddenly slapped my buttocks,” she told VCAT.
The woman was left ‘very embarrassed’ by repeated and varied sexual harassment
The sexual harassment didn’t stop with the bottom slapping. In late 2019, the woman was left ‘shocked’ and ‘embarrassed’ by Mr Cheung while she was reviewing a tote bag. Having placed it on her left shoulder, her manager ran his hand down the bag strap and ‘brushed the side’ of her left breast. The woman then quickly put the bag down and stepped back so he wouldn’t touch her again.
Mr Cheung also subjected the woman to verbal sexual harassment, which she says made her ‘very embarrassed.’ In November 2019, he told her, ‘Why is your upper body so big but your bottom so skinny – your bottom has no meat!’
‘I reacted by forcing a laugh’ said the woman as she experienced further sexual harassment
The woman was once again a victim of Mr Cheung’s unwarranted advances in January 2020. She says that whilst her manager was showing her how to lock up and set the security alarm, he turned around and smiled, then ‘put his arm around my neck and tried to pull me towards him.’ The woman quickly pulled away from his grip. As they left the room, Mr Cheung tickled the woman’s waist with his hand, which caused her to react by forcing a laugh.
The sexual harassment resumed just a day later while the woman was sitting at her desk. She says Mr Cheung touched her shoulder and said, ‘Oh you’re very tense, are you stressed all the time? That’s why your shoulders are very tight, I’ll give you a massage.’ The woman responded by saying ‘No thank you‘, but her manager proceeded to give her a massage.
Mr Cheung is dismissed after the woman reports the sexual harassment
The unbidden massage was the last straw for the woman, who reported Mr Cheung to her senior manager. Mr Cheung was subsequently dismissed ‘on the spot,’ however, the senior manager asked the woman to keep her complaint confidential.
The dismissal caused even more distress for the production coordinator. She says she felt ‘incredibly anxious’ answering questions from co-workers regarding her manager’s dismissal. Feeling like the workplace was ‘no longer a safe place, she says she ‘had no choice but to resign’. Doing so in January 2020.
In yet another devastating blow for the woman, she learned that Mr Cheung was rehired by the company soon after her resignation. She says it made her feel ‘like [Mr Cheung] had gotten away with his sexual harassment.
VCAT accepts the woman’s sexual harassment claims
VCAT Senior Member Susan Burdon-Smith ruled in favour of the woman’s evidence of sexual harassment, finding that it left her shocked, humiliated and unsure how to respond. She found Mr Cheung’s comments regarding the woman’s figure were ‘vulgar and inappropriate.’ And that he had ‘engaged in repeated physical contact with [the coordinator].’
“The nature of the relationship and the escalating level of intimacy leads me to the conclusion that this massage occurred in circumstances where it was both of a sexual nature and unwelcome,” she said.
Senior Member Burdon-Smith remarked that because the woman was considerably younger and junior in position than the manager, that she was in a particularly vulnerable position. She also said that even though the coordinator didn’t display her unease, it ‘does not derogate from her discomfiture.’
Mr Cheung is ordered to pay $10,000 in damages
In her sexual harassment application to VCAT, the production coordinator sought $100,000 in damages, including lost wages. But Senior Member Burdon-Smith rejected the lost wages claim. She found that the woman could have retained her job had she allowed her employer to make changes for her.
The woman’s claims for special and aggravated damages were also rejected. Mr Cheung was ordered to pay the coordinator $10,000 in general damages.
What should you do if you’re sexually harassed at work?
In the aforementioned case, the victim had quit her job due to the emotional turmoil she was experiencing. Whilst her reasons for doing so are understandable, this ultimately worked in favour of her abuser.
It’s not uncommon for victims of sexual harassment or assault to resign. However, doing so isn’t advised. A victim has the right to keep their job and shouldn’t have to sacrifice their salary or career because of an abuser’s unlawful actions. They also have the right to stand their ground and fight for their rights. If anyone should suffer, it should be the abuser.
Steps to take if you’ve been sexually harassed at work …
So, if you are a victim of sexual harassment in the workplace, what should you do?
Firstly, you can ask the perpetrator to ‘stop’ and express that their behaviour is ‘making you uncomfortable’. Often, this is sufficient to make them realise their actions are unwelcome. However, if the abuser continues their harassment, you should report them to your organisation’s management.
If you’ve taken the above steps, and the response of your employer hasn’t helped you feel safe at work, you can still lodge a sexual harassment complaint in your respective state jurisdiction. Each Australian state and territory has their own anti-discrimination laws. They therefore also have their own commissions, boards or tribunals through which victims can lodge claims against their employers for breaking state-specific laws.
If you’re looking to lodge a sexual harassment or discrimination complaint in your state, our expert team at A Whole New Approach P/L can help. During our 20 years in business we have achieved significant victories for our clients and can also assist YOU in defending your right to work in a happy and safe working environment.
Call us today on 1800 333 666 for a free and confidential discussion.