The Victorian Civil and Administrative Tribunal has awarded a female beauty therapist $150,000 in general damages for the sexual harassment and sexual assault she endured (and will likely continue to suffer the effects of) by a male coworker, Mr C, some four years earlier.
The Applicant had made two separate complaints to her then-employer, male beauty therapy company Hebeich Pty Ltd (which traded as “Man Oh Man”) about Mr C’s behaviour, which included:
- sticking his tongue in his cheek and looking at the applicant in a sexual manner;
- deliberately brushing past the applicant;
- putting his legs between the applicant’s legs;
- making suggestive comments, jokes and sex noises;
- making comments about the applicant’s breasts;
- enquiring about the applicant’s sex life;
- slapping the applicant’s bottom;
- asking the applicant if she would like to see his [private area];
- requesting sex with the applicant whilst at work;
- asking the applicant if he could [inappropriately touch] her;
- attempting to embrace the applicant;
- attempting to put his fingers in the applicant’s mouth when her hair was being washed in a basin and her eyes were closed; and
- shoving his face between her breasts and moving his head left to right when she was in a reclined position having her hair washed.
The Tribunal found the employer’s response to these complaints to be “manifestly inadequate”. The employer did not address the complaints with Mr C as they were made and did not investigate any of the allegations. Further, no formal action was taken by the employer until five months after the sexual assault had occurred when the employer issued a written warning to Mr C.
Further, the only precautions taken by the employer to prevent such behaviour were making an employee handbook (containing an anti-discrimination policy, which contained a section on sexual harassment and a complaints-handling procedure) electronically available to staff and discussing the handbook “in a rudimentary manner in one staff meeting”. There was no evidence that Mr C, or any other staff member, ever accessed the handbook.
As such, Man Oh Man was held vicariously liable for failing to prevent or adequately address Mr C’s behaviour.
Member Scott found that had the employer conducted a proper workplace investigation after the initial complaint, or even second complaint, and implemented reasonable precautions, such as “the implementation of adequate educational programmes on sexual harassment issues and monitoring the workplace to ensure compliance with its sexual harassment policies [and taking] appropriate steps to communicate its sexual harassment policies to all employees… then it is likely that the sexual harassment… would have stopped and the sexual assault… would never have happened”.
As well as demonstrating the importance of implementing sufficient policies and procedures to help prevent misconduct and unlawful behaviour in the first place, this case highlights how crucial it is for employers to properly investigate workplace complaints for the benefit of workers and the business alike.
Emplawyer understands that investigating workplace complaints or grievances can be confronting and time-consuming for businesses. Nonetheless, as Man Oh Man’s case demonstrates, employers should never turn a blind eye to workplace complaints. Whether it is talking to you about whether there is an alternative ‘way to go’ to investigating (and sometimes there is), facilitating an investigation, conducting an investigation, or upskilling your team to manage complaints and/or do investigations, we are here to assist.
