© 2017 Sebastian De Brennan. Barrister at Law

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SEXUAL HARASSMENT

November 29, 2017

SEXUAL HARASSMENT

 

Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of employment law, criminal law or human rights law (depending on the factual matrix of your case) before acting or relying on any of its content.

 

With Hollywood tycoons such as Harvey Weinstein looming large in the media of late for alleged inappropriate and (according to some) outright criminal behaviour, the topic of sexual harassment in the workplace seems to be finally getting the attention it deserves.

 

In recent times, Australian courts have recognised that workplace organisational cultures, as well as the law, have fallen behind community standards when it comes to sexual harassment, and to send a clear message that such conduct (however occurring) is to be deterred and denounced.

 

SEXUAL HARASSMENT CASE STUDY

 

In Richardson v Oracle Corporation Australia Ltd and Tucker [2014] FCAFC 82 the Full Court of the Federal Court of Australia awarded $130,000 plus costs in an appeal of an original award of $18,000 in a landmark sex discrimination and unlawful sexual harassment judgment. The case saw a significant shift in the approach to the assessment of compensatory damages for sexual harassment.

 

Background

 

Ms Richardson (the appellant) was working at Oracle (first respondent) with Mr Tucker (second respondent) as part of a ‘bid team’ in order to secure a project in 2008. It was alleged that from the time of her first face to face meeting, she was subjected to incidents of a ‘humiliating series of slurs, alternating with sexual advances, from Mr Tucker which built into a more or less constant barrage of sexual harassment’.[1]

 

As a result of this conduct, Ms Richardson was diagnosed with a chronic adjustment disorder with mixed anxiety and depressive moods, and also contributed to problems in her subsequent sexual relationship with her partner. Initial internal investigation at Oracle following a complaint with relevant HR personnel upheld much of Ms Richardson’s concerns. However, throughout the investigation process, Ms Richardson continued to work with Mr Tucker, resulting in the issuance of a warning and an apology by email. By March 2009, she had ceased employment with Oracle as a result of this conduct and the handling of the investigation. Ms Richardson then brought a claim against Mr Tucker pursuant to section 28B(2) of the Sex Discrimination Act 1984 (Cth) for eleven separate incidents of sexual harassment[2]. She further argued that Oracle was vicariously liable for the conduct of Mr Tucker.[3]

 

Law

 

Section 28B(2) provides that it is unlawful for an employee to sexually harass a fellow employee. Sexual harassment is constituted where a person (a) makes an unwelcome sexual advance, or request for sexual favours; or (b) engages in other unwelcome conduct of a sexual nature towards to the person harassed.[4] This test is one of the ‘reasonable person’. That is, would a reasonable person have anticipated the possibility that the harassed individual would be offended, humiliated or intimidated.

 

Decision at First Instance

 

It was held by Justice Buchanan of the Federal Court that Mr Tucker had engaged in conduct in contravention of the relevant provision of the Act and that the failure of Oracle to take  reasonable steps to prevent rendered it vicariously liable. General damages for non-economic loss and damage were ordered in the amount of $18,000. The claim for economic loss (the difference in salary between her role at Oracle and a new position she had obtained with another company following the incident) was not upheld.

 

On Appeal

 

The appeal was grounded on the inadequacy of the compensation and that economic loss should have been awarded. The Full Federal Court increased the award of general damages to $100,000 and also awarded $30,000 for economic loss. This was based on the following reasoning:

  • Compensation should have factored in the deterioration and damage caused to Ms Richardson’s sexual relationship with her partner;

  • The range that has been traditionally awarded for non-economic loss in sexual harassment matters is not reflective of prevailing community standards;

  • The Court should look towards personal injury claims to ascertain prevailing community standards and the emphasis placed on the pain and loss of enjoyment of life suffered by the victim;

  • On this basis, the $18,000 in damages was manifestly inadequate given the impact the conduct had on the appellant’s health and relationship;

  • Though Ms Richardson was not ordered to leave her position with Oracle, Court found a sufficient causal link between Mr Taylor’s conduct and the handling of the investigation and the decision to discontinue employment.

Revised Approach

 

This matter indicates a significant upward shift in the award of damages for sexual harassment in the workplace in light of strong community standards and expectations. As stated by Justice Kenny:

 

‘… the quantum of awards historically awarded in these other fields to successful claimants in situations not wholly unlike Ms Richardson’s reveals a substantial disparity between the level of those awards and the typical compensatory damages provided to victims of sexual discrimination and harassment. Such disparity bespeaks the fact that today an award for sexual harassment, though within the accepted range for such cases, may be manifestly inadequate as compensation for the damage suffered by the victim, judged by reference to prevailing community standards’.[5]


By Sebastian De Brennan, Barrister, s.debrennan@humanrightslaw.com.au

 

[1] Richardson v Oracle Corporation Australia Pty Limited [2013] FCA 102, [13].

[2] Richardson v Oracle Corporation Australia Pty Limited [2013] FCA 102, [17].

[3] Sex Discrimination Act 1984 (Cth), s 106.

[4] Sex Discrimination Act 1984 (Cth), s 28A(1).

[5] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, [109].

 

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