Australia has been alive to sexual and other express forms of discrimination since the mid-1980’s, with the establishment of the Sex Discrimination Act in 1984 and the Human Rights and Equal Opportunity Commission in 1986. Yet despite over thirty years of operation and practice, if the behaviours of senior business leaders (read top-tier lawyers), well known entertainers, churchman and politicians, to say nothing of the everyday conduct of many lower to middle management employees are to be factored in, it is clear that we are yet to learn the lessons. So much so, that the changes sort by the legislative framework can be described as anything but ‘baked-in’.
Given the impact on the bottom line, the question is, why have we been so utterly negligent in addressing the issue?
Is it because we have been slow to address the gender pay gap, running the fatuous argument that women have to get there solely on merit, even when they are denied the opportunity to show their talent and commitment. Or is it because the Australian workplace is largely dominated by the anachronistic and dare I say, medieval view that women are only capable of doing so much.
This Update will endeavour to set out the cost and impact of sexual harassment and bullying, whilst examining the impact of ‘fishing off the company wharf’ on business, individuals and family and finally, try to focus on the steps needed for cultural change, so that we can move out of the bog that harassment and inappropriate behaviour takes us.
So what is it or perhaps more accurately what is it not?
Before we attack the problem we have to understand it, so we need a definition.
In simply terms Sexual Harassment can be defined as –
“unwelcome behaviour (subjective test), which a reasonable person would anticipate in the circumstances that the person harassed would find humiliating, offensive and intimidating.” (objective test)
Whether the behaviour is unwelcome is a subjective test, ie the issue is how the conduct in question was perceived and experienced by the recipient rather than the intention behind it.
It is necessary for the victim to make it clear that the harassment was unwelcome (and to be able to prove it, to claim compensation). However, the view has been expressed that, in the absence of an invitation or intimation from the employee that sexual advances or conduct would be welcome, the legislation should not be read as permitting a “trial contact” by an employer or co-worker to ascertain whether the employee consents to or welcomes the sexual behaviour.
Whether the behaviour was offensive, humiliating or intimidating is an objective test: ie whether a reasonable person would have anticipated that the behaviour would have this effect.
There is more in the definition than meets the eye, as most defendants will say words to the effect “what do you mean, I was only joking and meant nothing by it”.
Given it is a subjective test their intent means absolutely nothing when defining the offence.
Types of Conduct
- intrusive questions asked at employment interviews (see Hall & Ors v Sheiban & Anor (1989) EOC 92-250)
- physical contact such as kissing, patting, pinching or touching in a sexual way (see Collins v Smith (Human Rights) (2015) EOC 93-771; (2015) 67 AILR 250-056;  VCAT 1029, Taylor v Sciberras (2004) EOC 93-337;  NSWADT 104, Coleman v Bentley (2002) EOC 93-221;  NSWADT 87)
- requests for sexual favours (see Taylor v Sciberras (2004) EOC 93-337;  NSWADT 104, Lyon v Godley (1990) EOC 92-287)
- attempts at sexual intercourse
- sexual intercourse under threat of loss of employment (Aldridge v Booth (1988) EOC 92-222)
- sexual assault (see Thomas v Westpac Banking Corporation (1995) EOC 92-742;  IRCA 311, Wilkinson v Buchan and ABRE Pty Ltd (2003) EOC 93-290; (2003) 53 AILR 300-024;  QADT 9, STU v JKL (Qld) Pty Ltd and Ors (2016) EOC 93-807; (2017) 69 AILR 300-201;  QCAT 505)
- requiring hugs and or kisses from employees or co-workers (see Watkins v Fryer & Anor (1995) EOC 92-667)
- asking employees or co-workers questions about their sex lives or underwear, etc, (see Dobrovsak v AR Jamieson Pty Ltd & Anor (1996) EOC 92-794;  HREOCA 32, Smith v Buvet & Anor (1996) EOC 92-840;  QADT 10, Torres v Commissioner of Police (2017) 69 AILR 200-580;  NSWIRComm 1001)
- offers of rewards for sex (see Collins v Smith (Human Rights) (2015) EOC 93-771; (2015) 67 AILR 250-056;  VCAT 1029, Bone v Powling & Anor (1992) EOC 94-486)
- lewd comments
- dirty jokes (including by email) (Torres v Commissioner of Police (2017) 69 AILR 200-580;  NSWIRComm 1001)
- foul language (see GrainCorp Operations Limited v Markham (2003) EOC 93-250; (2002) 52 AILR 4-644;  AIRC 1318)
- suggestions or innuendo (see Taylor v Sciberras (2004) EOC 93-337;  NSWADT 104 where the owner offered to book a hotel room)
- statements of a sexual nature, either verbal or written and either made to a person or in their presence
- sexually explicit conversation
- unwelcome remarks about a person’s sex or private life (Torres v Commissioner of Police (2017) 69 AILR 200-580;  NSWIRComm 1001)
- suggestive comments about a person’s appearance
- posting of pin-ups in the workplace (see Horne & Anor v Press Clough Joint Venture & Anor (1994) EOC 92-556)
- showing pornography (see Wilkinson v Buchan and ABRE Pty Ltd (2003) EOC 93-290; (2003) 53 AILR 300-024;  QADT 9)
- screen savers with any overtly sexual content
- love letters (see Spencer v Dowling (1994) EOC 92-625;  VicSC 654)
- proposals of marriage or claims of “falling in love” (see Taylor v Sciberras (2004) EOC 93-337;  NSWADT 104)
- offensive or nuisance telephone calls (see Hill v Water Resources Commission (1985) EOC 92-127)
- a sexually explicit prank (Green v State of Queensland, Brooker and Keating (2017) EOC 93-816; (2017) 69 AILR 300-202;  QCAT 8)
- offensive or nuisance emails
The definition of bullying in the workplace seeks to embrace a definition that includes repeated unreasonable, humiliating, threatening behaviour that means the workplace is no longer safe.
Behaviours include abusive and insulting language, cyber bullying, unrelenting teasing, threats etc.
What it is not is reasonable management action including performance management goal setting exercises, managing organisational change to name a few.
What does it cost us?
In pure economic terms the cost of sexual harassment and bullying (including absenteeism, turnover, redundancy, dismissal, cost of recruitment, training and development, litigation, rehabilitation, and compensation) amounts to $700 million per year. In fact this figure is in all likelihood far higher when we consider that the cost of depression alone to Australian economy according to a Safe Work Australia study in 2013 was a staggering 12.6 billion.
In the UK a 2008 study conducted by the Chartered Management Institute found that 100 million days were lost in productivity, turnover due to sexual harassment and bullying.
View of the Courts
Two recent decisions have highlighted the significant upward shift in compensation that may now be awarded in sexual harassment cases in the workplace.
In Richardson v Oracle Australia Pty Ltd  FCAFC 82, the Full Court of the Federal Court seemingly brought judicial thinking into line with community expectations by significantly increasing the damages awarded to an ex Oracle employee who was subjected to unlawful harassment in the workplace.
It was alleged by Richardson that she was subjected to multiple humiliating comments and sexual advances from a Mr Tucker whilst employed by Oracle in 2008 and that Oracle was vicariously liable for his conduct.
While the Full Court of the Federal Court held that Oracle had taken “reasonable steps” to prevent the harassment, it held that it had not taken “all reasonable steps”, as required by s 106 of the Sex Discrimination Act 1984 (Cth). Although Oracle had a policy which made clear that sexual harassment was against company policy, the policy did not state in clear terms that sexual harassment is against the law and the source of that authority. The policy further failed to emphasise Oracle’s interest in ensuring compliance with the policies, and failed to inform workers that “legal action could be taken against them individually for sexual harassment and that they could also be exposing the company to liability”.
Ms Richardson was ultimately awarded general damages of $100,000, plus $30,000 for economic loss. This was an increase from the $18,000 awarded to Ms Richardson at first instance.
In Mathews v Winslow Contractors  VSC 728, the plaintiff commenced work as a labourer with the respondent, Winslow Constructions Pty Ltd (the employer) in 2008. The employer was a large construction company with many employees working at many sites. It specialised in civil engineering projects.
The employee worked at a few of the employer’s work sites from 2008 to 2010 and was subjected to abusive remarks and conduct from other Winslow employees and subcontractors. Among others this included being:
- shown pornographic material, and asked if she would “do this”;
- the subject of a simulated sex act;
- called a “spastic” and a “bimbo”;
- told that she would be followed home and raped;
- told she would be sexually assaulted while at work;
- slapped on the bottom, and
- subjected to various sexual comments about her body.
The employee complained about this treatment to an Area Site Manager but no action was taken. Later, in September 2009, the employee was moved to another site with a different crew. At this site, the employee suffered no sexual harassment.
In June 2010, the employee was inexplicably moved back to the crew where she had suffered the harassment, bullying and abuse. When the employee complained she was told “You will work wherever the f*** I tell you to work”.
The abuse resumed and the employee was again told the she would be followed home and raped. After complaining to a manager, who the employee presumed was an HR manager, she was asked to come over to his house for a drink to discuss the situation. She did not go, and later received a telephone call from a private number. When she answered a male voice called her a c***. The employee did not return to work following that incident.
The employee submitted that she suffered a psychiatric injury, being a major depressive disorder and post-traumatic stress disorder (PTSD) as a result of her treatment by the employer at its various work sites. The employee claimed that she had trouble getting out of bed, cried a lot, had a persistent lower mood and disturbed sleep. The employee presented evidence that she had been treated and assessed by numerous psychiatrists and psychologists, who agreed that she was a distressed young women who was suffering from a major depressive disorder and significant chronic PTSD. The depressive symptoms were a permanent condition which would require “medication and regular review … and monitoring by a psychiatrist for the rest of her life”. Medical practitioners gave oral evidence that the employee’s quality of life had suffered severely and the prognosis was poor.
She further submitted that she was not well enough to work and that her life was subsequently limited to simple tasks such as bike riding with her mother, household duties, grocery shopping and gardening. The employee told the court that she thought about the events at her employer’s various sites on a daily basis.
The employee’s mother and partner submitted that before working for the employer, the employee was a bright, confident young woman who loved outdoor activities. Her mother observed that when working for the employer she became anxious, experienced insomnia and particularly after the rape threat she became visibly upset and would scream a lot. The employee’s partner gave evidence that their relationship has been placed under stress. He was regularly concerned that he would return home from work and find she had taken her own life.
She also tendered evidence that she had sustained an injury to her jaw as a result of grinding her teeth. Medical evidence was presented that this developed over time due to her tension and holding her muscles very tight. It was submitted that this injury due to chronic teeth grinding caused the employee’s ongoing pain and limited her capacity to chew and enjoy many foods. Medical evidence was submitted that the employee was likely to require surgery for this injury.
The employer did not challenge the medical evidence submitted by the employee. The employer had three psychiatrists assess the employee but did not call any of the psychiatrists to give evidence nor did it tender any of the reports to the court.
The employer submitted films of the employee taken at various locations and at different times to show that she was not constantly in a distressed state. The films showed the employee shopping and engaging with and smiling at shop keepers, walking with her mother, gardening and moving a wheelbarrow of wood around her garden at home. The employer presented this evidence regarding the quantum of damages.
Justice Forrest found the employee’s injuries to have resulted from her employment. His Honour also considered the employee a reliable witness and accepted that her emotional state was consistent with her psychiatric illness.
His Honour did not consider the films presented by the employer to have any material impact on the employee’s reliability as a witness, nor to impact on the nature and extent of her psychiatric illness. Forrest J noted that this case did not concern a back injury and the activity shown demonstrated very little. This was confirmed in medical reports. The footage represented fragments of the employee’s life and appearing “normal” in the films did not mean that a person was in fact “normal”.
His Honour considered that the employee sustained considerable psychiatric injuries as a direct consequence of bullying, abuse and sexual harassment levelled at her by employees and subcontractors engaged by the employer.
General damages were awarded to the employee in the amount of $380,000 for her psychiatric and jaw injuries. The employee also received damages for past economic loss in the amount of $283,942.
When awarding the employee damages for loss of earning capacity of $696,085, Forrest J considered that to all accounts, including those of the employer’s Area Manager, the employee was a good worker and if not for the harassment, bullying and abuse was likely to have enjoyed long-term employment by the employer and would have moved “up the ladder” and received promotions throughout her career.
Forrest J awarded total damages in the amount of $1,360,027.
What to do – the need for cultural change
First and foremost when change is needed employers must be willing to change.
So management buy-in is essential.
Employers must ensure that their sexual harassment policies and training procedures are up to date and compliant with the law.
Richardson a classic example of a policy with no teeth, didn’t help the employee and cost the employee a record fine.
Recommend the following steps:
- conduct a full review of all policies and procedures/codes of conduct re bullying and harassment; grievance; discipline to ensure compliance with Cth and State legislation;
- train your people – the message being the absolute centrality of the P&Ps to the business and its success;
- introduce or reinforce regular consultation with employees (staff meetings, tool box, staff surveys);
- exit interviews – encourage open and transparent responses;
- have good investigation protocols in place ie conflicts – send it out.
The aim is to create a supportive work culture that is highly responsive to inappropriate and illicit behaviour.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.