31 Jan January Newsletter: Employer liable for $1.3m in damages following workplace harassment – HR Law

Employer liable for $1.3m in damages following workplace harassment

The employee brought proceedings against her former employer alleging workplace abuse, bullying and harassment by employees and subcontractors and that her employer was either vicariously liable or negligent towards her.

The employee was subjected to various forms of harassment, including derogatory and sexual remarks, being shown pornography and being slapped on the bottom.  The employee said she did not want to complain to her foreman, as he had made some of the offensive remarks himself. Although she complained to her area site manager, she saw nothing done about it until September 2009, when she was moved to a different crew and the harassment ceased. However, the employee was moved back to the original crew in June 2010, where the harassment continued.

Matters culminated in July 2010 when another employee threatened to “follow (her) home, rip her clothes off and rape (her)”.  The employee reported this to the person who she thought was responsible for human resources who invited her to “come to my place in Warrandyte, and we will have a drink and talk about it”.  Later that day, the employee received an anonymous phone call, with the person calling her a highly inappropriate name.  The employee did not return to work after this.

The Court accepted that as a result of the harassment, the employee suffered from psychiatric injuries and in addition, she sustained a jaw injury from grinding her teeth, which the Court found was caused by her employment.

Both the employee’s mother and partner gave evidence about how the employee had changed as a result of the harassment and the Court considered them to be “honest and reliable historians who are both extremely worried for [the employee’s] welfare”. The Court rejected covert video footage taken of the employee by her employer.

The Court said that the evidence was “virtually unanimous that it is unlikely [the employee] will ever work again”.  The employee was awarded a total of over $1.3 million, comprised of general damages, past economic loss and loss of earning capacity.

In this case, the employer originally denied liability and claimed contributory negligence, but during the trial accepted liability for the claim.  Despite this, this case shows the importance of having clear guidelines in place to both educate employees on appropriate and inappropriate behaviours and correct complaint and grievance procedures to deal with employee complaints at all levels of the organisation.

If you require assistance in developing harassment, bullying and grievance policies and procedures in your workplace, or dealing with workplace behaviour issues, please contact us.

The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.