Sexual harassment case studies

Summary: A cleaner at a school was sexually harassed when two of his co-workers, one male and one female, set up a staff room to appear as though two staff members had used the room for a sex romp. The prank was directed at the cleaner, and the room was set up with empty alcohol bottles, clothes, and a condom containing fluid. The male co-worker invited the cleaner to sniff boxer shorts left in the room. The cleaner was distressed by the scene, including that he thought he was cleaning up bodily fluids. He was also upset and concerned that two named staff members were having an affair and had used the school premises to get together. He was preoccupied with the sex romp to the point that he intended to speak to one of the staff members who he thought was involved. At that time the male co-worker involved in the prank told the cleaner that it had all been a prank. On hearing this, the cleaner fell to his knees.

It was undisputed that the setting up of the room was conduct of a sexual nature. The tribunal found that because the prank was directed at the cleaner, the conduct was in relation to him.

The tribunal found it was also sexual harassment of the cleaner when the male co-worker invited him to sniff the boxer shorts, and when that co-worker informed staff in a nearby shop of the prank.

The tribunal found the cleaner had been victimised after complaining of sexual harassment. The male co-worker had pretended to photograph or video the cleaner when he was at the school, and had gestured with his middle finger to the cleaner's wife and children at the school.

The cleaner suffered an acute anxiety state because of the prank, and within a month he was unable to work. He suffered an adjustment disorder with anxiety and depression, and his psychological condition developed into post-traumatic stress disorder. His condition caused problems sleeping and concentrating, fatigue, rapid heart rate, trembling, obsessive thinking, eating and stomach problems, compulsive behaviours, bouts of crying, depressed mood, and feelings of hopelessness and anxiety. He was unable to work for two years, and was then only able to return to part-time work. The tribunal considered he would be unable to return to full-time work for a further two years.

The tribunal discussed at length how QCAT should assess damages in light of the 2014 decision of the Full Court of the Federal Court in Richardson v Oracle . The tribunal stressed the importance of consistency in awards, particularly as required under the QCAT Act. The tribunal also examined the six cases where Richardson has been cited in other Australian jurisdictions. That examination shows that although there have been some increases in the level of awards, those increases have not been nearly as dramatic as in Richardson itself.

The tribunal concluded that where there is a recognisable personal injury, the tribunal should continue the approach of consistency with Queensland court awards in personal injury cases. However, where there is no recognisable personal injury and therefore no comparable Queensland awards, the tribunal can be influenced by Richardson to increase its level of awards, if it is appropriate to do so.

When considering previous awards, those awards should be adjusted for inflation. Advocates would assist the tribunal in adjusting previous awards for inflation when citing them.

The tribunal also determined that interest on non-financial loss should be awarded unless there is a proper reason for not doing so, though not at a commercial rate.

The tribunal awarded $156,051, made up of:

• Non-financial loss (pain, suffering, loss of enjoyment of life, and the offence, embarrassment, humiliation and intimidation suffered): $70,000
• Interest on non-financial loss: $3,160
• Past loss of income (gross): $17,430
• Past loss of superannuation: $1,656
• Future loss of income: $48,338
• Future loss of superannuation: $5,467
• Future cost of treatment: 10,000

Green v State of Queensland [2017] QCAT 008

Summary: A young woman was sexually harassed when she woke to find an older man naked in her bedroom. He touched her upper thigh and groin, and tried to remover her underpants. She told him to leave and broke down crying.

The woman's employer had arranged for her to share the work-provided accommodation with the man. They each had their own room, and the woman had moved in the night before the sexual harassment.

The woman was unable to take up her new job as planned, and she suffered post-traumatic stress disorder and depressive symptoms. She was unable to work from the incident (which happened on 1 December 2012) until March 2015.

The tribunal found that the personal injury to the woman caused by the sexual assault on her was severe and prolonged.

Issues the tribunal considered and decided included whether the sexual harassment occurred in the course of the man's employment, the credibility of the woman and the extent to which the sexual harassment caused her injuries, and how damages should be assessed.

The tribunal awarded compensation of $328,316.10 made up of:

• General damages (personal injury): $70,000
• Interest on general damages: $8,260
• Past financial loss (gross of income tax, and after deducting worker’s compensation payments received): $16,594.42
• Interest on past financial loss: $33,575.75
• Past loss of superannuation: $21,059.06
• Interest on past loss of superannuation: $4,348.70
• Future economic loss: $25,000
• Special damages: $396.40
• Interest on special damages: $81.77
• Future medical and associated costs: $3,000

From the total of $328,316.10, the amount paid in settlement of a personal injuries claim was deducted, leaving an award of $313,316.10.

STU v JKL (Qld) Pty Ltd [2016] QCAT 505 (6 December 2016)

Summary: A female traffic control worker, who was sexually harassed by a male co-worker, made a complaint against the worker as well the private company that employed them and the company that contracted the employer. During the pre-trail proceedings, the claims against both companies were settled. As a preliminary issue, the tribunal decided that the settlements with the companies released them from liability, but the release did not extend to the individual co-worker.

For five months the woman was subjected to personal comments, questions, noises, and gestures — all of a sexual nature — on a daily basis and throughout each shift. When the male co-worker inadvertently saw a picture of the woman's breasts on her phone, for the rest of the day he made comments and sucking noises and rubbed the stop/slow stick on his groin area while sticking out his tongue. The woman tried to work the next day but couldn't cope, and she resigned that night. She experienced an emotional breakdown which became a Major Depressive Disorder.

The tribunal found that the sexual harassment was a substantial cause of the woman's condition, the effects of which would continue over a period of three years, including an inability to work. The tribunal awarded compensation of $40,000 for non-financial damages, and $102,217 overall. The settlement amounts paid by the two companies and any lump sum payment for permanent impairment by WorkCover would be deducted from the total award.

In the reasons for the decision, the tribunal discussed the coping mechanisms and decisions of women subjected to unwanted sexual comments in male-dominated workplaces. While the ideal course would be for the woman to make it clear that the comments are unwanted, and then if they continue, to complain to management, the tribunal recognised that this is not always practical, especially if the employer is unlikely to be supportive, and if making unsubstantiated allegations is regarded as a disciplinary matter. In this case, the woman's way of dealing with it was to go along with the banter to some extent, and hide her true feelings in the belief she could cope with the harassment. She was committed to her job and did not want to jeopardise it by reporting the sexual harassment. In the end, the woman could not cope and this resulted in greater damage to her.

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

Summary: A complaint of sexual harassment by a part-time worker in a hardware business was upheld when the tribunal found that the employer had failed to take sufficient action in relation to the employee's report of inappropriate behaviour.

The alleged sexual harassment included kissing, touching her breasts and leg, persistent requests to have a drink outside work hours despite an ongoing refusal, asking for cuddles, telephoning her at home, and making repeated unsolicited sexual remarks.

The complainant reported the sexual harassment to her supervisor, but initially asked to be allowed to handle it herself. The supervisor granted her request and did not take any action until the formal complaint was made.

The tribunal found that, even in these circumstances, the employer was vicariously liable for the acts of its employees. It found the employer has an overriding responsibility to provide a workplace free from harassment, and that the wishes of complainants are secondary to this responsibility. Allegations of sexual harassment against another employee and claims of victimisation were dismissed.

The complainant was awarded damages of $24,425 which included general damages and economic loss.

KW v BG Limited, DP & DF [2009] QADT 7 (21 April 2009)

Summary
Background: Ms Shepherd was a 23 year old woman employed by Mr Tuck, who owned and managed a marine survey business. After two months, Ms Shepherd's employment was terminated on the basis, she alleged, that she would not engage in a personal relationship with him.

She based her complaint on a series of incidents alleged to be sexual harassment. These included: statements of a sexual nature to and about her: blonde jokes (apparently inferring that she was not intelligent), taking a photograph of another woman's legs and suggesting it be stuck on Ms Shepherd's office desk, gifts and a suggestion of shared accommodation while travelling in order to minimise costs.

Mr Tuck admitted he was attracted to Ms Shepherd, but said it was she who made advances to him and that she proposed a relationship. He countered the allegations with other claims. These included Ms Shepherd introducing herself by kissing him on the neck, not voicing any objection to shared accommodation, referring to herself as a slut, and dressing scantily in his presence.

Mr Tuck argued that Ms Shepherd's employment was terminated because of her inappropriate conduct while representing the company, her lack of capacity to do the tasks, and inadequate workplace performance. Examples included giving out company business cards to males in whom she was interested, making a serious error in a ship's manual and instead of correcting it as asked, going to have a drink with the ship's cook, refusing to do field work, putting personal matters before business appointments, and driving the company car after drinking alcohol. On the issue of jokes, Mr Tuck said Ms Shepherd joined in the general joke-telling and humour of the office.

Outcome: Member Pagani found that neither party was deliberately untruthful , and agreed in general on the facts. She found the main divergence was that Mr Tuck indicated he never intended offence, and Ms Shepherd said she was offended.

In terms of Mr Tuck's desire to have a relationship with Ms Shepherd, it was found that no reasonable person in her circumstances would have been offended by the proposal, had it been made by the first respondent as alleged.

In summing up, the Member said Ms Shepherd and Mr Tuck had shared a very casual, and personal, working relationship. The working environment was rough and tumble , but the complainant was an equal participant in it . The Member found that Ms Shepherd failed to prove her case to the required standard.

Shepherd v Tuck and Tuki Marine Surveys Pty Ltd [2002] QADT 10 (19 April 2002).

Summary: A woman alleged a manager sexually harassed her when working for a club over a period of several years. The allegations included touching her breasts, leering, and that comments of a sexual nature were made about her body. She stated she had complained to management several times and that the complaints were ignored. She also alleged that as a woman she had been denied promotions offered to less experienced males at the club. As a result, she resigned.

The manager and the employer denied the allegations, stating her attitude at work had deteriorated during her employment. The matter was resolved by conciliation with the employer and the manager paying $15,000 to the complainant. The respondents also provided written apologies for any offence the complainant may have experienced.

Summary: A man alleged sexual harassment against a male supervisor and his employer, a government authority. It was also alleged that in the course of attempting to resolve the complaint the complainant experienced difficulties accessing the grievance mechanisms within the organisation.

At a conciliation conference, the allegations were discussed and misunderstandings were identified, resulting in the complainant withdrawing his complaint against his supervisor.

The complainant was able to detail his experience to the respondents and an agreement was reached which included the employer reviewing the grievance and investigation procedures to include quick reference summaries and flow charts to assist access and implementation of the mechanisms. It was also agreed by the employer to increase training and awareness of appropriate work place behaviour, including detailed anti-discrimination and sexual harassment grievance mechanisms.

There was no financial settlement sought.

Summary: A man alleged that he had been sexually harassed at his place of work. He claimed one of his co-workers had exposed his anus to him, had run a piece of timber with splinters up between his legs to his groin, and had run his finger down between his buttocks. When he objected, his co-workers began calling him obscene names regularly. The man said he had witnessed many male youths being subjected to the same treatment at the work place, with most of the young men resigning, and with one young man having attempted suicide. When he advised his foreman of this behaviour, he was told to ignore the men's actions. He claimed management had witnessed the behaviour, but had done nothing to rectify the problem.

At the conference, the individual respondents admitted to the behaviour but asserted that the actions had occurred only as a joke in an attempt to lighten the work environment. The senior managers stated that they were unaware of the behaviour, as the foremen had not notified them at any time of adverse behaviour occurring. The company did admit that they had difficulties in getting young males to remain employed with them; however, they believed this may have been because young people didn't want to work .

On hearing the admissions made, the company issued a first and final warning to the individual respondents, gave an undertaking that all staff would be trained in sexual harassment and discrimination matters, and that such behaviour would not in the future be tolerated by any staff. The complaint was resolved as the complainant was satisfied with the company's undertaking and the individual men's apologies.

Summary: A woman lodged a complaint with the Commission alleging sexual harassment by her boss, who was also her academic mentor. The woman alleged that the sexual harassment occurred over a period of two years. The alleged harasser was in a position of authority over her in that she was his student and he was her boss. She claimed that towards the end of the sexual harassment he stalked her by following her and waiting outside her house.

The respondents denied the allegations stating that the relationship was mutual and that there was no sexual harassment.

In conciliation the matter settled for the payment of $60,000 for pain and suffering, and the individual respondent provided a written apology. One of the two respondents settled the matter with the payment of $5,000. Both parties were extremely pleased with the resolution of the matter.