Sexual Harassment Australia

Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126

Factual Background

The Complainant ‘Hill’ commenced working for the Respondent as a paralegal in May 2015. The Respondent was a solicitor at a boutique law firm in New South Wales.

Sexual Harassment

Within two months of commencing employment, in July 2015, the Respondent began sexually harassing the Complainant,  sending her incessant emails ‘professing his love for her and proposing a romantic relationship’, which she openly rejected.

The Respondent further exploited the power imbalance between himself and the Complainant,  as he was the principal of the legal practice, while the Complainant was a paralegal, new to the role, and relied on her employment to care for her two children.

In July 2015, the sexual harassment escalated. On a work trip to Sydney, the Respondent and Complainant stayed at the house of the Respondent’s brother. Whilst the Complainant had left her bedroom, the Respondent entered her room and lay on her mattress in only his underwear, waiting for her to return. When the Complainant returned, she repeatedly asked him to leave, which he only agreed to do if she gave him a hug. The following morning, the Respondent was waiting in the complainant’s bedroom when she came out of the shower, and he was dressed only in a towel.

After the work trip, the ‘emails and invitations continued unabated’, and there were additional physical incidents. For example, on several occasions the Respondent prevented the Complainant from leaving her office until she gave him a hug.

In October 2015, the Complainant again confronted the Respondent directly and asked him to stop harassing her. However, the Respondent refused her request and continued to send her emails. On 12 October 2015, he sent the Complainant seven consecutive emails without a reply, expressing in one email that her work performance was not good enough because she was not sleeping with him, and in another he wrote in the subject line ‘EXPRESSING MY FEELINGS IS NOT HARASSMENT’.

Procedural History

The Complainant filed a complaint with the Australian Human Rights Commission on 9 November 2016, which was unresolved at conciliation. The Complainant then commenced proceedings in the Federal Circuit Court, in which she gave evidence at trial about how the sexual harassment had ‘psychologically traumatised’ her.

Compensation Ordered

The trial judge found in favour of the Complainant and that sexual harassment had occurred, ordering the Respondent to pay the Complainant $120,000 in general damages and $50,000 in aggravated damages. The Respondent appealed the decision in the Federal Court Full Court, though it was dismissed by Collier, Reeves and Perram JJ.

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2020/2020fcafc0126

Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728

Factual Background

The Complainant,  Kate Mathews, was employed by the Respondent, Winslow Constructors Pty Ltd as a labourer. During her employment, the Complainant was subjected to abuse, bullying and sexual harassment by employees and subcontractors, resulting in a serious chronic psychiatric illness.

Sexual Harassment

The sexual harassment against the Complainant was not contested by the Respondent at trial. The Complainant testified that the following remarks or conduct were directed at her or carried out in her presence, amongst numerous others:

• ‘I am going to follow you home, rip your clothes off and rape you.’
• Shown pornographic material, the Complainant was asked, ‘Would you do this?’
• ‘You are a spastic, a bimbo.’
• ‘Do you have to go home and hide your dildos and play toys?’
• ‘Kate, let’s put a pole in the yard and you can get it off.’
• ‘Did you get laid over the weekend?’
• ‘I had a great wank over you last night.’
• ‘Check out her arms. She would rip my cock off.’
• ‘When a guy’s been drinking and he blows in your mouth, does it taste the same as when he hasn’t?’
• ‘I will take you into the container and fuck you.’
• ‘Do you have silicone boobs?’
• ‘You have a great fucking arse.’
• While she was cleaning out a drainage pit, a colleague came up behind the Complainant, grabbed her by the hips and performed or acted a sexual act on her.
• A colleague said that he would like to throw the Complainant to the ground, ‘come all over her and then watch her lick it off.’
• ‘Anything that bleeds once a month should be shot.’

Procedural History

The Complainant took her case to the Supreme Court of Victoria, where the trial judge, Forrest J, found in her favour.

Compensation Ordered

The Respondent was ordered to pay the Complainant damages consisting of:

• $380,000 general damages for pain and suffering;
• $283,942 for past economic loss;
• $696,085 for loss of earning capacity.

The award of damages totalled $1,360,027. While this figure is substantial, it is important to note that the majority of the compensation was for lost income and loss of future income due to sustaining a chronic psychiatric illness.

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2015/728.html

Golding v Sippel and The Laundry Chute Pty Ltd [2021] QIRC 074

Factual Background

The Complainant,  Ms Golding, was employed by The Laundry Chute Pty Ltd, a laundromat. During her employment, Ms Golding was subjected to repeated and escalating unwelcome sexual advances from her boss, Mr Sippel.

Sexual Harassment

The unwanted conduct of a sexual nature by Mr Sippel consisted of:

• Inappropriate touching of Ms Golding’s bottom and legs
• Forcing Ms Golding to touch Mr Sippel’s genitals
• Asking Ms Golding for massages
• Frequent requests for sex
• Explicit text messages

When Ms Golding rejected Mr Sippel’s advances, her work was withheld. This significantly impacted Ms Golding as she was the sole carer for her children, following a history of domestic violence, and relied on her employment to financially provide for her children. Therefore, Ms Golding was forced to acquiesce to Mr Sippel’s advances or otherwise not be offered work.

Procedural History

Ms Golding’s matter appeared in the Queensland Industrial Relations Commission (QIRC), where the tribunal decided in favour of Ms Golding. Mr Sippel had attempted to argue the explicit text messages and sexual references were ‘banter’, though Ms Golding’s evidence was preferred.

The tribunal deemed that Mr Sippel’s conduct was such that a reasonable person in his place would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct, having regard to:

• Ms Golding’s sole financial responsibility for her children;
• Ms Golding’s history of domestic violence and consequent psychological trauma;
• English being Ms Golding’s second language;
• Ms Golding being significantly younger than Mr Sippel.

Therefore, because Mr Sippel made unwelcome sexual advances towards Ms Golding, which a reasonable person would consider may offend, humiliate or intimidate Ms Golding, Mr Sippel was found to have sexually harassed Ms Golding.

Compensation Ordered

Mr Sippel was ordered by the QIRC to pay Ms Golding compensation consisting of:

• General damages at $30,000, as Ms Golding had since been diagnosed with Adjustment Disorder and Mixed Anxiety and Depressed Moods as a result of the sexual harassment. Ms Golding’s sleep was disrupted and her mood significantly affected. Ms Golding had become short-tempered, anxious and easily distressed, and had commenced taking anti-depressant medication.
• Aggravated damages of $5,000, in respect of Ms Golding’s increased loss due to the ‘callously transactional’ conduct of Mr Sippel in withholding her work if she rejected his advances.
• Costs. Mr Sippel was required to pay Ms Golding’s legal costs.

The total amount of compensation ordered was $50,960.75.

https://archive.sclqld.org.au/qjudgment/2021/QIRC21-074.pdf

STU v JKL (Qld) Pty Ltd [2016] QCAT 505

Factual Background

The Complainant,  a young woman, had just commenced a new job with the Respondent, through which she was provided accommodation. The Respondent had arranged for her to share the accommodation with an older man, though with each having their own bedrooms.

Sexual Harassment

The Complainant awoke to find the older man naked in her bedroom. The man proceeded to sexually assault her, touching her upper thigh and groin, and attempting to remove her underwear. The Complainant was shocked and traumatised. She told the man to leave and started crying.

Because of the sexual harassment, the Complainant was diagnosed with post-traumatic stress disorder and depressive symptoms. The Complainant’s trauma from the sexual harassment was protracted and debilitating. She was unable to start the new job with the Respondent, nor could she work for two and a half years.

Procedural History

The Complainant’s matter was heard in the Queensland Civil and Administrative Tribunal (QCAT), where the tribunal found that the Complainant had been sexually harassed. The Respondent employer was vicariously liable because it was found that the sexual harassment had occurred in the man’s course of employment.

Compensation Ordered

The Complainant was awarded compensation totalling $328,316.10, which was comprised of:

• General damages at $70,000 for the Complainant’s psychological personal injury;
• Interest on general damages at $8,620;
• Past financial loss at $16,594.42 (gross income tax, deducting workers’ compensation payments);
• Interest on past financial loss at $33,575.75;
• Past loss of superannuation at $21,059.06;
• Interest on past loss of superannuation at $4,348.70;
• Future economic loss at $25,000;
• Special damages at $396.40;
• Interest on special damages at $81.77;
• Future medical and associated costs at $3,000.

https://archive.sclqld.org.au/qjudgment/2016/QCAT16-505.pdf

Nunan v Aaction Traffic Services Pty Ltd [2013] QCAT 565

Factual Background

The Complainant,  Ms Nunan, was a female traffic control worker employed by the Respondent, Aaction Traffic Services Pty Ltd.

Sexual Harassment

The Complainant was sexually harassed by a male colleague for five months on a daily basis. The sexual harassment consisted of sexual comments, questions, noises and gestures directed at the Complainant.

The final incident that prompted the Complainant’s resignation occurred when the male colleague inadvertently saw a photo of the Complainant’s breasts on her phone. For the rest of the day, the male colleague made inappropriate comments and gestures, including sucking noises and rubbing the stop/slow sign around his genital region while sticking out his tongue.

When the Complainant attempted to work the following day, she was too traumatised and resigned that evening. The Complainant subsequently suffered from an emotional breakdown due to the sexual harassment, which developed into a major depressive order. As a result, the Complainant was unable to work for three years.

Procedural History

The Complainant’s matter was heard in the Queensland Civil and Administrative Tribunal, where it was found that the Complainant was sexually harassed and that was a substantial cause of her psychological injury.

Compensation Ordered

The Complainant was awarded total compensation of $102,217, which included general damages of $40,000. Workers’ compensation payments that the Complainant had received were to then be deducted from the total amount.

https://archive.sclqld.org.au/qjudgment/2013/QCAT13-565.pdf

Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty [2017] NSWCATAD 156

Factual Background

The Complainant,  Mr Kordas, was employed as an apprentice hairdresser for the Respondent, Ruba & Jo Pty Ltd, trading as Aztec Hair and Beauty in New South Wales.

Sexual Harassment

During his employment, the Complainant was sexually harassed by his manager, Mr Rony, and his colleague, Mr Eaton.

Complaints against Mr Rony:

• Stroking the Complainant’s palm when he gave money to purchase goods for the salon, which occurred on several occasions during the Complainant’s first few weeks of employment.

Complaints against Mr Eaton:

• Requiring the Complainant to hold his hand when he was showing the Complainant how to blow-dry hair
• Putting his hands around the Complainant’s waist
• Brushing against the Complainant unnecessarily
• Slapping the Complainant’s bottom with a ruler
• Referring to the Complainant as his “bitch”
• Stating that himself and the Complainant were like a “gay married couple”

The Complainant complained to Mr Rony about the sexual harassment, requesting changes in the workplace to protect him from further inappropriate conduct. However, in response, Mr Rony terminated the Complainant’s employment.

As a result of the ongoing workplace sexual harassment, and victimisation in the form of the dismissal, the Complainant was humiliated and distressed, causing him to become socially withdrawn and preventing him from working for 16 months. The Complainant had existing depression, which was exacerbated by the sexual harassment.

Procedural History

The Complainant took his matter firstly to Anti-Discrimination New South Wales (ADNSW), though the matter could not be resolved through conciliation. The Complainant subsequently requested that the ADNSW refer his complaint to the New South Wales Civil and Administrative Tribunal (NCAT) for determination.

Compensation Ordered

NCAT found the complaints against Mr Rony and Mr Eaton were both substantiated and the Complainant was awarded a total of $30,000 as general damages. This amount comprised of:

• $5,000 from Mr Rony for sexual harassment;
• $10,000 from Mr Eaton for sexual harassment;
• $15,000 for victimisation.

https://www.caselaw.nsw.gov.au/decision/591bb516e4b058596cba6930

McGuire v Reyes t/as The Entrance Lakehouse [2017] NSWCATAD 50

Factual Background

The Complainant,  Ms McGuire, was employed as a kitchen hand by the First Respondent, Ms Maria Reyes, trading as the Entrance Lake House. 

Sexual Harassment

During her employment, the Complainant was sexually harassed by the Operations Manager, Mr Spooner (Second Respondent).

The incidents of sexual harassment include:

• Mr Spooner hugging the Complainant around her neck;
• Mr Sponer coming up close to the Complainant’s face while she was working;
• Mr Spooner putting his hands around the Complainant’s bottom and touching her genital area while she stood on a step ladder on two occasions.

The unwelcome sexual advances occurred from March 2015 until 26 June 2015, many of which were unreported by the Complainant at the time. The Complainant reported the last incident on 26 June 2015 to her boss, Ms Maria Reyes, on the same night it occurred. The incident consisted of Mr Spooner walking up behind the Complainant while she stood on a step ladder and placing his hands on her buttocks.

However, Ms Reyes terminated the Complainant’s employment for complaining about the sexual harassment by Mr Spooner – which the Complainant alleged was victimisation.

Procedural History

The Complainant first made a complaint to Anti-Discrimination New South Wales (ADNSW), though the matter was unable to be resolved through conciliation. The President of the ADNSW subsequently referred the matter to the Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal (NCAT).

The initial complaints of victimisation against Ms Reyes were withdrawn at the commencement of the NCAT hearing because Ms Reyes had been declared bankrupt. The sexual harassment complaint against Mr Spooner proceeded, and it was found by NCAT that the Complainant had been sexually harassed, and had been humiliated and distressed by Mr Spooner’s conduct.

Compensation Ordered

The Complainant claimed that the sexual harassment on 26 June 2015 led to a relapse of her mental illness. However, no medical evidence was provided by the Complainant to support this argument, which could have been from her general practitioner or a psychologist. Therefore NCAT was unable to find that the sexual harassment caused a relapse of the Complainant’s mental illness. However, in respect of the distress and humiliation suffered by the Complainant due to the sexual harassment, NCAT awarded the Complainant $6,000 as damages, to be paid by Mr Spooner within 28 days.

https://www.caselaw.nsw.gov.au/decision/58990f7be4b058596cba3cb4

Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107

Factual Background

The Complainant,  Ms Yelda, was an employee of the First Respondent, Sydney Water Corporation (‘Sydney Water’).

Sexual Harassment

Sydney Water (First Respondent) and Vitality Works Australia Pty Ltd (Second Respondent) displayed a poster with an image of the Complainant,  followed by the words “Feel great – lubricate!” underneath. Sydney Water approved the design, publication and display of the poster in the workplace, which was conduct of a sexual nature.

The Complainant had agreed to have her photograph taken for internal promotional material for Sydney Water, but the conduct was unwelcome because she did not know that her image would be used alongside the slogan “Feel great – lubricate!”. The Complainant argued the slogan had sexual connotations and consequently portrayed her as a “sex object” within her workplace.

As a result of the display of the poster, the Complainant was offended and humiliated, immediately sustaining a psychological injury. The Complainant was unable to return to work at Sydney Water and she was clinically diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood.

Procedural History

The Complainant’s matter was heard before the Administrative and Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal (NCAT). It was first determined by the Tribunal on 1 October 2019 that the Respondents had contravened sections 22B and 25(2)(c) of Anti-Discrimination Act 1977 (NSW) in respect of the display of the poster of the Complainant,  constituting sexual harassment. In a separate hearing in February 2021, the Tribunal determined the compensation awarded to the Complainant.

Compensation Ordered

The Tribunal ordered both Respondents to each pay the Complainant $100,000 in damages, amounting to $200,000 in total. 

https://www.caselaw.nsw.gov.au/decision/179171e1106626b829cc1787

Lucy Orchard v Frayne Higgins [2020] TASADT 11

Factual Background

The Complainant, Lucy Orchard, was an employee at Sanity in Eastlands. During her employment, she was sexually harassed by Mr Frayne Higgins, who was a delivery driver working for Toll Transport Pty Ltd (‘Toll’).

Sexual Harassment

Between 2013 and late 2014, the Complainant was sexually harassed by Mr Higgins when he delivered stock to the Complainant’s store. The incidents of sexual harassment include:

• Frequently calling the Complainant “Juicy Lucy”;
• Frequently asking whether the Complainant had a boyfriend;
• Routinely engaging in sleazy, intimidating and favouring behaviour towards the Complainant;
• Occasionally walked behind the racks in the store, jumped out and scared the Complainant;
• On one occasion in July 2014, slapping the Complainant’s bottom without her consent when she checked on some stock he had just delivered.

Procedural History

The Complainant’s matter was heard in the Tasmanian Anti-Discrimination Tribunal. The Tribunal found in favour of the Complainant,  deeming that she had been sexually harassed by Mr Higgins.

Compensation Ordered

The Anti-Discrimination Tribunal ordered the Respondent, Mr Higgins, to pay the Complainant a total of $45,000 in damages as compensation for the sexual harassment. The total sum consisted of:

• $25,000 in damages for the Complainant’s psychological injury stemming from the sexual harassment;
• $20,000 in aggravated damages due to the Respondent sending a letter to the Complainant’s employer, accusing the Complainant of defamation and demanding payment of compensation. This letter psychologically harmed the Complainant, impacting her relationship with her partner and hindering her enjoyment of life.

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/tas/TASADT/2020/11.html?context=1;query=sexual%20harassment;mask_path=au/cases/tas/TASADT

Kerkofs v Abdallah (Human Rights) [2019] VCAT 259

Factual Background

The Complainant, Ms Kerkofs, was an employee of Parker Manufactured Products Pty Ltd (PMP), the First Respondent, for only 12 days from 4 May 2016 until 16 May 2016. Ms Kerkofs worked in an office within a factory that manufactured steel products.

Sexual Harassment

During her 12 days of employment, the Complainant was sexually harassed by the First Respondent, Mr Mohammed Abdallah, during the course of his employment with PMP. Mr Abdallah’s unwelcome conduct of a sexual nature included:

• Addressing the Complainant with inappropriate nicknames, such as “sexy”, “honey”, “baby”, and “sweetie”;
• Making unwelcome comments of a sexual nature;
• Making sexual comments about the Complainant’s body;
• Staring at the Complainant’s body in an evidently sexual way;
• Massaging the Complainant’s shoulders and neck, while she was working and without invitation;
• An incident 13 May 2016, wherein Mr Abdallah made comments about the Complainant’s bottom in front of other employees as she leaned over her desk;
• Discussing women in derogatory terms, along with other male employees, such as rating the appearance of women out of ten;
• An incident on 16 May 2016 – Mr Abdallah drove the Complainant to her home after she was feeling unwell at work, at the direction of his immediate superior. When Mr Abdallah arrived at the Complainant’s house, the Complainant remained in the passenger seat for a moment because she was too ill to move. Mr Abdallah entered the backseat of the car, leaned towards the Complainant and proceeded to massage her neck and upper body down to her breasts. Mr Abdallah then assisted the Complainant enter her home, as she was still very ill and weak. The Complainant immediately lay down on her bed. Without invitation, Mr Abdallah moved onto the bed from behind the Complainant and touched her breasts and her back, while she was too ill to move or fight him off. Mr Abdallah also tried to unfasten the Complainant’s bra and kissed her on the head. Mr Abdallah made comments such as “you are so vulnerable, I could do anything to you right now” and that she was “making [him] horny”. The Complainant did not consent to any of this conduct, groaned in disgust and expressed “I just want to go to sleep, I am going to be sick.”

On 19 May 2021, the Complainant made a complaint to her employer about the sexual harassment, particularly regarding the incident on 16 May 2021.

Procedural History

The Complainant’s matter was heard in the Human Rights List of the Victorian Civil and Administrative Tribunal (VCAT). Her Honour Judge Harbison, Vice President of VCAT, found that the Complainant’s complaint of sexual harassment against Mr Abdallah and PMP as her employer were both proven.

Compensation Ordered

The two Respondents, Mr Abdallah and PMP, were required to jointly pay the Complaint general damages of $130,000 to compensate her for her pain and suffering from the sexual harassment.

Mr Abdallah was also required to pay the Complainant a further $20,000 in aggravated damages. This sum was in respect of Mr Abdallah sexually assaulting the Complainant while he was in a position of authority and she was vulnerable, “incapacitated by a disabling medical condition”.

Thus, the total sum awarded to the Complainant was $150,000 in damages. 

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2019/259.html?context=1;query=sexual%20harassment;mask_path=au/cases/vic/VSC+au/cases/vic/VCC+au/cases/vic/VMC+au/cases/vic/VCAT