#MeToo: a Sexual harassment case update

The #MeToo movement may empower employees to raise sexual harassment allegations. These allegations may be both historic and recent.

This poses an important question for employers: Will the current avalanche of sexual harassment allegations toppling prominent men in media and government cascade down to my workplace?

References are emerging in courts and tribunals to this change in attitude, with Commissioner Spencer recently stating in her decision to reinstate a worker dismissed because of sexual harassment allegations, which she found to be unsubstantiated, that:

For clarity, in the current environment of sexual harassment allegations, it is necessary to comment that nothing in this Decision should be construed as condoning sexual harassment at a workplace in any way. Nor should it be interpreted as limiting the employment of females underground. When allegations of sexual harassment and other conduct are made, the Commission has an obligation to carefully assess the evidence and weigh such against the tests in s.387 of the Act.[note]Mr Vincent Wilson v Anglo Coal (Moranbah North Management) Pty Ltd T/A Anglo American [2017] FWC 4386 at [132][/note]

Case law update

Green v the State of Queensland [2017] QCAT 008 – significant compensation for hurt and humiliation

It has been over three years since the Full Federal Court’s landmark decision in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, which increased an award of $18,000 in general damages for hurt and humiliation to $100,000 in relation to ‘a more or less constant barrage of sexual harassment’[note]Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102, [13]. [/note] over a six-month period.

Recent case law appears to indicate that awards for non-financial loss in sexual harassment and discrimination cases before the Queensland Civil and Administrative Tribunal may be on the rise.

Facts

Mr Green was a school cleaner, who was sexually harassed when his colleagues, as a prank, set up the staff room to make it appear as if two staff members had used the room for a sexual romp.

The room contained empty alcohol bottles, a condom with fluid in it, and clothes.

One colleague invited Mr Green to smell clothing that was left in the room and told him that two staff members were having an affair. Mr Green became very upset by the prank and became preoccupied with the idea that the two staff members were having an affair.

Mr Green was told that it was a prank when he made the decision to go and talk to one of the staff members (whom he was told was having an affair).

Decision

The Tribunal found that inviting Green to smell the boxer shorts, as well as the colleague telling people in a nearby shop about the prank, constituted sexual harassment of Mr Green.

The Tribunal also found that Mr Green was victimised after he complained about the sexual harassment to the school because his co-worker pretended to photo and video Mr Green when at school and made a gesture with his middle finger to Mr Green’s wife and child.

Mr Green also suffered an anxiety disorder and PTSD and was unable to work within a month of the prank for over two years.

Tribunal member Gordon considered the Oracle decision favourably when making his award of damages in favour of Mr Green and determined that a total of $156,051 should be awarded to Mr Green consisting of:

• non-financial loss (pain, suffering, loss of enjoyment, offence, embarrassment, humiliation and intimidation): $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; and
• future costs of treatment: $10,000.

Mr Vincent Wilson v Anglo Coal (Moranbah North Management) Pty Ltd T/A Anglo American [2017] FWC 4386 – reinstatement of employee accused of sexually harassing a trainee

Facts

In the recent decision of Wilson v Anglo Coal, the Fair Work Commission (FWC) ordered the reinstatement of a technician accused of sexually harassing a trainee at an underground coal mine.

The allegations against the technician emerged in the trainee’s exit interview, where the trainee alleged that the technician had:

• patted, slapped or touched the trainee while in the confined space of a ‘man basket’; and
• engaged in sexual explicit conversations with the trainee at work.

Anglo Coal substantiated two of the trainee’s allegations following an investigation.

Decision

In deciding in favour of the technician, Commissioner Spencer said she preferred the technician’s evidence and noted that there was no clear and cogent proof before the Commission to conclude the allegations had been made out on the balance of probabilities. Commissioner Spencer accepted that the sexually explicit comments had not occurred, and that the contact between the technician and the trainee could have been accidental.

Commissioner Spencer looked particularly poorly on the investigator’s focus on the technician’s shocked facial expression upon being told of the allegations as corroborating evidence.

Jay Higgins v Coles Supermarkets Australia Pty Ltd T/A Coles [2017] FWC 6137 – texting sexually explicit images in the workplace

Facts

Mr Higgins was a baker employed by Coles and was dismissed for sending his manager sexually explicit and pornographic images, namely two pictures of a penis. His manager had requested he send a picture of his injured thumb.

Decision

Commission Simpson held that the manager’s response to the first text message demonstrated he found the message funny, which led the baker to believe he accepted the joke. After receiving the manager’s response to the second text message indicating he no longer accepted the joke, it was not disputed that the baker ceased to send any further images.

Commissioner Simpson was not satisfied that the baker’s conduct fell within the definition of sexual harassment in Coles’ Equal Opportunity Policy,[note]Jay Higgins v Coles Supermarkets Australia Pty Ltd T/A Coles [2017] FWC 6137, [61].[/note] however found the baker’s conduct to be a clear breach of Coles’ code of conduct, which required employees to treat others with dignity, courtesy and respect.

Commissioner Simpson also took a dim view of the baker’s refusal to take any responsibility for his conduct when he was giving evidence before the FWC, which resulted in Commissioner Simpson accepting Coles’ evidence that it could not hold confidence in the baker’s ability to comply with Coles’ core values under the Code.

In finding in favour of Coles, Commissioner Simpson determined that there was a valid reason for the baker’s dismissal and, while there were some flaws in the process, overall it was not so procedurally flawed as to have caused any significant level of prejudice to the baker.[note]Ibid, [128].[/note]