Single mother awarded compensation in the hospitality industry
A recent case within the Queensland Industrial Relations Commission has made waves across the hospitality industry. The case involves a single mother fighting for her rights to work in a sexual harassment free workplace.
The hospitality industry is vulnerable to acts of sexual harassment from customers and managers alike. This industry is commonly listed as one of the most offending. This has mainly been attributed to the social and customer interaction requirement of the job. Hospitality involves often close proximity to many strangers, which can increase the risk of sexual harassment.
Furthermore, a hospitality venue will often include the serving of alcohol in a more casual environment. Therefore, individuals may feel more relaxed or believe that more sexual acts would be permissable. More so than in a formal business-like office or workplace.
Moreover, sexual harassment in the hospitality industry has historically disproportionately affected young people, women and migrants. With often a combination of those characteristics present in a harassment matter. This is because perpetrators will often target people they believe to be inferior or more vulnerable due to a lack of respect.
JF v Oishi Teppanyaki & Café Pty Ltd & Anor
A single mother has begun working at the Oishi Teppanyaki & Café Pty Ltd (trading as King of Grill) in 2018. The employee was the sole provider for her children and relied on the position. She worked alongside the owner and his wife.
The sexual harassment had occured over the span of a single day. The employee was scheduled to work a split shift. When it was her time to leave, the owner (who she was working with alone at the time) asked her to stay in the cafe so that they could talk and have a drink.
The employee agreed. However, after the drink the owner began asking the employee if she would have sex with him. The employee clearly refused. However, the owner did not stop his persistence.
At the end of the night, after customers had left, the owner had allegedly tried again. The employee described how the owner had grabbed and touched her breasts and placed his hands under her clothes to touch her genitals. The worker was very uncomfortable and tried to get away. However the owner had prepared for that scenario.
The employee tried to get away by saying that she was going to smoke outside. However, when she tried to leave she found all the doors locked. At that point she even considered burning herself on the fire on the grill in order to get away due to needing hospital attention.
When the employee was able to escape, she filed a police report and did not return back to work.
Criminal charges
The employee went through both the criminal and civil justice system. After reporting the incident, the police charged the owner with multiple offences. One of which he pled guilty to, the one count of sexual assault.
Severe emotional turmoil
As a result of the attack and sexual harassment, the employee’s mental health had severely suffered. She said has been diagnosed with post-traumatic stress disorder and experiences panic attacks. This had also led to symptoms of nightmares, breathlessness, isolation from others, intrusive thoughts, anxiety and depression.
These diagnoses resulted in an employee that was wildly different compared to who she was prior to the sexual harassment. Before she described herself as “hardworking, confident, happy, sociable and reliable”. This highlights how traumatic these events can be.
Due to the incident the employee also has trouble talking to strangers, particularly men. Which will have a negative impact on her when trying to find further work as it’s unavoidable to have conversations without men or strangers in general.
The incident also had an effect on the employees’ children. Where she described her children as having to “babysit” her just to go grocery shopping and losing her financial independance.
Unwelcome solicitation against perpetrator
There was not an elaborate dispute regarding whether the sexual harassment occured. Deputy President Hartigan accepted the argument that because the owner had been convicted of sexual assault under the criminal jurisdiction, that he did commit the offence.
Moreover, the Deputy President believed that the sexual harassment had been unsolicited and unwelcome. Therefore, the event had amounted to sexual harassment under the relevant legislation. This was due to the fact that the employee had “pleaded” for him to stop, and the need to lock the doors to keep her trapped inside the establishment.
It would be reasonable for anyone to know that the employee could be offended, humiliated and intimidated by the owner’s conduct. Particularly considering the employee’s gender and the power imbalance between an employee and owner.
Relying on previous case law
As part of her submissions, the employee relied on previous influential case law to persuade the Deputy President how much she should receive in financial compensation. One of those cases was Richardson v Oracle 2014. This case was significant as the victim (Ms Richardson) had won the argument that she was sexually harassed. However, she had appealed her own decision in pursuit of a better financial outcome.
Before this case, the average settlement was a range of $12,000-$20,000. However, this case highlighted a societal shift that saw victims of sexual harassment being compensated more due to the pain and suffering they experienced. There was consideration for the community values that upheld the pain and toll of being sexually harassed.
Ms Richardson won her appeal. Her financial compensation had gone from $18,000 to $100,000. Stating that the original compensation amount was “manifestly inadequate”. The case also established that the employer was “vicariously liable” for the conduct of its employee. Failing to implement preventative measures against the behaviour.
Golding v Sippel
Another similar case that was cited was Golding v Sippel and The Laundry Chute Pty Ltd. This case was held in the Industrial Court of Queensland. The employee endured a 14 month long campaign of harassment by her employer. This was inclusive of demanding her complete sexual acts amongst other events.
Similarly, the victim was a mother who bared the sole financial responsibility of her children who relied on her job to do so. The court recognised that the sexual harassment was severe and prolonged. Which contributed to her financial compensation.
At first, Ms Golding was only awarded $30,000 in general damages and $15,000 for economic loss. However, the court found that the compensation was “manifestly inadequate”. Therefore, she received a total amount of $130,000 in damages.
This case recognised the harm of sexual harassment in Queensland. With the Queensland Court following the new societal expectations that victims are compensated accordingly. With women and minorities representing a majority of victims.
Taylor v August and Pemberton
The case of Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 was also relevant. This is a recent case that became pivotal in molding sexual harassment compensation. The case was influential as it included the victim being given numerous gifts, inappropriate commentary, one-sided proclamations of love, and inappropriate touching. This repeated behaviour occurred over a 22 month time span.
When Ms Taylor, the victim, had made a complaint regarding the sexual harassment to the Australian Human Rights Commission. Which in turn, made the perpetrator demand his gifts back. And if she refused, then he would threaten that she had stolen the gifts and report her to the police.
As a result of the prolonged sexual harassment and victimisation, Ms Taylor was awarded a landmark compensation amount including $140,000 in general damages and $40,000 for victimisation. The total package of compensation equaled approximately $268,230.00.
Single mother awarded compensation
The Deputy President in this matter considered the above cases and awarded the employee $140,000 in general damages, $10,000 in aggravated damages, and $26,434 towards her legal costs. The Deputy President denounced the cafe owner. Particularly for his disregard towards her attempts to stop the sexual harassment. Furthermore, for his serious violation of the employee’s rights to work in a sexual harassment free workplace.
There was a clear abuse of power that the owner used for his own gratification. Furthermore, the effects of his actions had caused a long-lasting effect on the employee. It was noted that the employee did appear to be slowly recovering and had secured further employment. However, was in a state where her mental health could worsen.
How is compensation calculated?
There are a few factors that are considered when calculating compensation. Furthermore, there are common themes that could potentially mean more compensation compared to other claims.
There were a few reasons why the employee was awarded such a high figure of compensation. Firstly, the sexual harassment itself was severe. No reasonable person would be able to argue that the behaviour was not completely inappropriate and likely to harm the recipient.
Typically where there is more obscurity as to whether someone would have been reasonably offended or upset by the behaviour, compensation will decrease. When obscurity exists that allows more opportunity to diminish the effects of the sexual harassment.
It was also helpful that the owner has previously pleaded guilty to sexual assault under the criminal jurisduction. Criminal jurisdiction has a higher threshold in order to prove that something occurred. Therefore, if it occurred under the criminal jurisdiction it is more than likely to be found true under the civil jurisdiction.
This idea of ‘proof’ also aligns with evidence. It is easier to award compensation when there is clear evidence to prove the sexual harassment occurred. Rather than just an argument of “he-said-she-said”. While evidence is not always strictly necessary, it does help for the pursuit of compensation.
Pain and suffering
More compensation will also be awarded when there is clearly a negative effect on the victim. Typically this will include documented and professionally provided evidence that the victim’s mental health has been negatively impacted. However, this can also include other factors such as age, vulnerability, or ability to find further work.
In this case, the Applicant’s mental health had clearly been impacted. Causing her to be diagnosed with multiple mental health disorders. Which will have a long-lasting effect on her life. Therefore, the sexual harassment is not limited to just one day, but for the extent of her suffering.
More severe forms of damage or suffering, whether physical or mental, will have more compensation awarded. This is done in an attempt to restore the victim to their original position prior to when the sexual harassment occurred. However, there is an understanding that financial compensation can only do so much.
A win for women
This case highlights yet again the justice system’s way of denouncing sexual harassment. It is no longer something that is mocked or swept aside but taken seriously with real punishments. The idea of blaming women and victims has become outdated and a thing of the past. The courts are actively fighting against prehistoric rhetoric that victim-blame.
There is more pressure on employers to be educated on sexual harassment law, and actively place preventative measures. This may include comprehensive policies and annual training. With all these elements, we are one step closer to keeping employees and vulnerable people safe.
Are you vulnerable at work?
Sexual Harassment Australia’s team will help you stand against sexual harassment to protect and empower yourself. You have the right to work in a wokplace free from sexual harassment or discimination. We offer a sexual harassment assistance service and have helped so many people and took stand against their employer and harasser.
If you are unsure if you are a victim or how to move forward let us help you with a free consultation. We will ensure that everything is confidential. Its better to know your rights and options than to stay in the dark.
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