In this recent Victorian Civil and Administrative Tribunal case, Ms Oliver applied for remedy under the Equal Opportunity Act 2010 (Vic) on the grounds that a co-worker had sexually assaulted her.
The conduct of her co-worker included making suggestive comments, requests for sex, sex noises, innuendo jokes and enquires about Ms Oliver’s sex life. Ms Oliver alleged that all of this conduct led to an incident of sexual assault on 30 November 2018.
Ms Oliver also claimed her employer was vicariously liable for the conduct of her co-worker, on the basis that they did not discourage this behaviour and, at times, would even encourage it.
To determine if an employer is vicariously liable for the unlawful conduct of its employee, it must prove that it took reasonable steps to prevent the conduct.
In this case, the Tribunal found that Ms Oliver’s employer’s conduct had fallen short of what was considered to be reasonable steps and precautions to prevent such behaviour. Ms Oliver’s employer’s only precaution against sexual harassment was some discussion in their employee handbook about anti-discrimination, an equal opportunity policy, and a section on sexual harassment.
The Tribunal found these precautions were not enough to prevent sexual harassment from occurring in the workplace, and therefore found the company vicariously liable for their employee’s conduct. The Tribunal ordered the company to pay Ms Oliver $150,000 in general damages.
This case is a timely reminder for all employers and employees that it is not enough to just pay lip service to sexual harassment policies. Ensuring everyone is adequately trained to identify and call out sexual harassment, investigations are conducted if complaints are received, and ensure all staff have read and understood the contents of policies and procedures.
Businesses have a year to ensure all practices in this space is up to date under the new legislation — Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022
