The Full Court of the Federal Court of Australia recently handed down the decision of Richardson v Oracle Corporation Aust Pty Ltd. The case concerned a dramatic increase in damages for a sexual harassment claim in the workplace. The decision highlights the potential for employers to be liable for large sums of compensation in instances they have not adhered to their responsibility to manage and eliminate sexual harassment in the workplace. Further, the decision brings to the forefront the vital importance of implementing and regularly enforcing a proactive sexual harassment policy.
For legal advice and legal services relating to Australian employment law and labour laws, speak to Aitken Whyte Lawyers in Brisbane to ensure your policies are current, properly implemented and enforced. Our solicitors can provide appropriate guidance and legal advice to ensure you are meeting your responsibilities or deal with any dispute or civil litigation that you may face if an employee makes a complaint or takes proceedings against your business.
Sexual Harassment is prohibited within employment both at federal and state levels within the Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act 1991 (Qld)respectively. Neither provision contains monetary limits, which means that the decision affects the potential liability for employers under both schemes.
The case concerned an employee who was suffering from an adjustment order following instances of sexual harassment. It was held that the damages originally awarded of $18,000 were not proportionate to community standards, which ‘now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than ever before’. The case adjusted the damages to award the appellant $100,000 and highlighted that traditional awards of compensation for victims of sexual harassment are grossly inadequate.
The case was not entirely unique in awarding such a large sum, as state tribunals have recently awarded large amounts of compensation for sexual harassment claims. An example of this is the recent case of GLS v PLP in the Victorian Civil and Administrative Tribunal, which awarded a victim of sexual harassment $100,000 for general damages.
While complaints systems are essential, a sexual harassment policy needs to include more than simply a complaints based system, as on average only one in five employees experiencing sexual harassment will lodge a formal complaint. Thus, a proactive sexual harassment policy which involves regular training of both employers and management is necessary. Managers and supervisors should be educated in order to ensure they will take complaints or comments by staff seriously and are equipped to help victims know the options for making a formal complaint.
Further, complaints systems need to be taken seriously and be well managed in order to encourage people suffering from sexual harassment to make a formal complaint, rather than dealing with the matter externally or engaging in avoidance or tolerance of the behaviour. In order to ensure complaints systems are effective, any actions in response to the complaint must not further victimise the complainant, things which may amount to this include such as dismissal, demotion or transfer of the victims employment or work-site. Additionally, clear and significant consequences, such as dismissal, demotion or formal apologies, for those who breach sexual harassment policies need to be implemented. In regards to this, dismissal on the basis of a clear and fair sexual harassment policy has been upheld in a number of cases.
The decision brings to light the heavy consequences employers may face when sexual harassment policies are not implemented or adhered to. Thus, it highlights the need for employers to implement and continually enforce a strong sexual harassment policy which includes training of management, education for all employees, a sound complaints system and strict consequences for those who perpetrate the policy.
Brisbane
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000
