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Prepared by ACS NSW/ACT for ACSA members
Every year, sexual harassment in the workplace is one of the most common types of complaints received by the Australian Human Rights Commission (AHRC) under the Sex
Discrimination Act. In 2009 – 2010, 21% of all complaints to the AHRC were under the Sex
Discrimination Act, and 88% of those complaints related to sex discrimination in the workplace. The wide use of new technologies such as mobile phones, email and social networking websites creates new spaces where sexual harassment may occur.
Sexual harassment at work is against the law. Sexual harassment can be committed by an employer, workmate or other people in a working relationship with the victim.
Sexual harassment of an employee can be a barrier to full participation in paid work. It can undermine their equal participation in organisations or business, reduce the quality of their working life and impose costs on organisations.
It is important for employers to know how to increase awareness of and prevent sexual harassment. It is also important for employees and co-workers to know how to identify sexual harassment and what avenues are available to them to make a complaint.
A campaign has been launched by the AHRC where employers can find out how to raise awareness of these issues within their organisation. Please go to Sexual Harassment – Know
Where the Line is . There are also resources for employers and employees including posters to put around your workplace to help raise awareness and encourage staff to seek advice if needed.
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www.colemangreig.com.au
The following article was provided by Stephen Booth. Stephen is a Principal at Coleman Greig
Lawyers, a Parramatta-based commercial law firm servicing clients in greater Western
Sydney and beyond, and winner of major awards in the 2013 and 2014 BRW Client Service
Awards for professional services. He has practised in employment law for 20 years and as head of the Employment Law Team regularly advises clients on terminations, contracts, compliance, discrimination and a range of other employment law issues.
In a landmark sexual harassment judgement, the Full Court of the Federal Court has set a new benchmark for compensation awarded to victims of sexual harassment in the workplace.
In Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, the Full Court has mirrored current community expectations about the sum of compensation to be awarded for the pain and suffering caused to victims of workplace sexual harassment. In its decision it significantly increased the damages awarded to an ex-employee of Oracle Corporation
Australia Pty Ltd who was subjected to unlawful sexual harassment in the workplace.
Ms Richardson had been awarded damages for non-economic loss and damage, essentially
“pain and suffering” and “loss of enjoyment of life,” of $18,000. This was within the
“standard range” of $12,000-$20,000 for such damages, well established in previous discrimination cases. There had been larger awards of damages, $90,000 - $100,000, in cases where the complainant could prove substantial and demonstrable psychological or medical problems arising from the harassment, but these cases were outside the more common run of cases where the “pain and suffering” and “loss of enjoyment of life” components fell short of that level. Ms Richardson appealed against the level of damages awarded.
Ms Richardson’s damage consisted of distress and humiliation at the actions of the fellow employee, further distress and humiliation caused by the need to continue to deal with the offending employee (as a result of Oracle keeping the employee in a team within which she needed to have contact with him, albeit only by phone, while her claim was being investigated), damage to her relationship because of the distress caused by the harassing behaviour, and a need for counselling. The distress occasioned noticeable change in Ms
Richardson’s demeanour and physical symptoms and a “not insignificant” adjustment disorder with mixed features of anxiety and depression, which lasted as long as Ms
Richardson continued to be employed by Oracle. The Full Federal Court acknowledged that this damage was less severe than in the previous cases outside the general run of damages awards.
However, the Court reassessed the general range of damages appropriate in discrimination cases. The Court then concluded that discrimination cases had become stuck in a time warp, because awards of general damages in other areas had increased substantially since
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these parameters were set, back in the 1980s, and community expectations of compensation in such a case had also increased substantially. The Full Federal Court decided that Ms Richardson’s case merited general damages of $100,000. It follows that in cases with severe demonstrable personal or psychological injury, general damages of substantially more will now be possible.
This means that the general area of discourse for damages, where sexual harassment is proved, will be substantially above the modest level which has applied to date. This emphasises the importance for employers of having their houses in order if they are to avoid vicarious liability for the conduct of an employee , by showing that they have done everything reasonably practicable to avoid such conduct in the workplace. This means having robust and up-to-date policies, sufficient training on and communication of those policies to employees, and prompt and effective complaint-handling processes.
Failure to do so will mean substantially greater exposure to damages, should a claim of sexual harassment arise.
For more information on workplace conditions and issues with inappropriate workplace behaviour please contact our experienced employment lawyer:
Stephen Booth, Principal
Phone: +61 2 9895 9222
Email: sbooth@colemangreig.com.au
If not, it is definitely time to implement one!
A written policy can only be effective in addressing sexual harassment if it is implemented effectively. All workforce participants should be made aware of the policy and their rights and obligations in relation to sexual harassment. Employers should distribute the sexual harassment policy widely and conduct regular information sessions on compliance. This may be achieved by:
 officially launching the sexual harassment policy at a full staff meeting with endorsement from senior management;
 emailing copies of the policy to all staff members and clearly explaining any new responsibilities to staff members who are promoted to management positions;
 displaying the policy on the intranet, office noticeboards and in induction manuals for new staff members;
 ensuring that the policy is accessible to employees from different cultural backgrounds, employees with disabilities or those working in remote areas;
 requiring all staff to sign a copy of the policy acknowledging that they understood the content;
 periodically reviewing the policy to ensure it is operating effectively and contains current information (eg about the law, contact and complaint officers).
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Ongoing training is also important in effectively implementing a sexual harassment policy.
Employers should ensure that sexual harassment training forms part of the organisation’s core training, including workplace induction.
Safe Work Australia recently issued a press release to coincide with World Mental Health
Day (10 October). It cited recent analysis by Price Waterhouse Coopers which indicated that untreated mental health conditions represent a cost of $11 billion a year through increased absenteeism, lower productivity and compensation claims. Safe Work Australia’s acting CEO encourages all Australians to focus on making a positive difference to mental health by creating a mentally healthy workplace.
PWC found that for every dollar spent on implementing appropriate actions to create mentally healthy workplaces, there is on average a positive return of $2.30 to the organisation.
Safe Work Australia has a range of resources available including:
 Australian Strategy Virtual Seminar Series video presentations that explore the issue of mental health and productivity;
 High performing sustainable workplaces and mental health by Dr Chris Stevens;
 Leaders: Heads Up on mental health! by Liz Tobin;

Factsheet Preventing Psychological Injury Under Work Health and Safety Laws aimed at persons conducting a business or undertaking and workers to address psychological risks; and
 Factsheet Workers’ Compensation Legislation and Psychological Injury that provides a general overview of the employer’s role under workers’ compensation legislation.
Safe Work Australia is a founding member of the Mentally Healthy Workplace Alliance which together with beyondblue has developed the Heads Up initiative, designed to help businesses take action across three broad areas:
 raising awareness and reducing stigma;
 supporting staff with mental health conditions; and
 reducing risks to mental health and promoting a positive working environment.
To access the Safe Work Australia Virtual Seminar Series presentations or factsheets visit www.swa.gov.au
. For more information and resources including the Price Waterhouse
Coopers report visit www.headsup.org.au
.
For free initial advice on OH&S, IR and HR issues, please contact our
Corporate Partner, Clare Dewan & Associates on (03) 9847 6824 or visit their website: http://cdassociates.com.au/contact .
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