Sexual harassment cases: trends in 2005

Analysis

Sexual harassment cases: trends in 2005

Of the formal complaints of discrimination in employment that proceeded to courts and tribunals, sexual harassment was clearly the most common issue in 2005.

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Of the formal complaints of discrimination in employment that proceeded to courts and tribunals, sexual harassment was clearly the most common issue in 2005. This outcome is similar to previous years. Looking at the decisions handed down in 2005, the following sexual harassment issues that arose may provide some general guidance for employers:

  • the employer’s right to insist on a particular type of clothing to be worn at work
  • what constitutes an adequate workplace policy on sexual harassment
  • the standard of proof required in harassment cases
  • the importance of having a workplace culture that does not condone or promote sexual harassment
  • what circumstances may make employers liable for sexual harassment that occurs outside working hours or not at the usual workplace

Cases involving these issues are summarised below. A previous article covered trends in other equal opportunity issues in 2005. 

OK to require employee to wear mini skirt 

In probably the most controversial decision of 2005, the Federal Magistrates Court held that requiring a female employee to wear a mini skirt while at work in a hotel did not amount to sexual harassment. The requirement was imposed when the woman was transferred to the hotel’s gaming room after working in another part of the hotel. She was told about the requirement when she transferred and voluntarily agreed to it at the time.  

The Court noted that the employer had not always strictly enforced the requirement, and that it did not amount to anything the employee was not prepared to do outside the work environment – for example she regularly wore mini skirts socially. 

The complaint about being required to wear a mini skirt occurred in the context of another, unsuccessful, complaint by the woman of sexual harassment by a hotel supervisor. 

Zhang v Kanellos & Anor [2005] FMCA 111 

What a policy statement must contain 

The sexual harassment policy of a butcher’s shop was found to be inadequate in terms of content and not implemented effectively. The Victorian Civil and Administrative Tribunal said that the policy did not clearly define 'harassment' nor give examples of unlawful conduct, nor provide any complaint handling process.  

A female employee had been subjected to comments of a sexual nature by male co-workers, but the policy did not state that comments could amount to harassment, nor did it not provide enough detail as to what people ought or ought not to say. Although the woman complained to the manager several times about various comments and incidents, the only action he took was to warn one employee. Therefore, the employer did not take reasonable precautions to prevent sexual harassment from occurring. The woman was awarded damages of $8,000. 

Styles v Murray Meats Pty Ltd [2005] VCAT 914 

Standard of proof required 

In upholding the dismissal of a New South Wales State Rail employee for sexually harassing a junior female work colleague, the New South Wales Supreme Court found that State Rail’s investigation of the claim of harassment had met the civil standard of proof and that on the balance of probabilities the harassment had occurred. 

The gravity of an allegation and the severity of consequences that flow from a particular finding have to be evaluated when deciding whether allegations have been proved to a tribunal’s satisfaction. Therefore, evidence of proof must be strong and cogent when the allegations are serious.  

State Rail had not relied on a mechanical weighting of probabilities, but had taken account of all the following issues:

  • its responsibility to provide a harassment-free workplace
  • gravity of the allegations
  • evidence of the harassed employee
  • the persistent nature of the harassment
  • the harassed employee’s vulnerability, as she had just started working and the harasser was her supervisor
  • corroborating evidence
  • credibility of witnesses
  • lack of mitigating circumstances

The above issues overrode issues such as the harasser’s past employment record, so his dismissal was justified. 

Duhbihur v Transport Appeal Board & Anor [2005] NSWSC 811

The importance of workplace culture 

Attempting to argue that he had been unfairly dismissed for alleged sexual harassment of co-workers, a supervisor at a Juvenile Justice Centre argued that the workplace culture was one where sexual banter, innuendo and physical contact between staff members were common, and his conduct should be judged in that context.

However, the Federal Industrial Relations Commission found that his dismissal was fair and commented that workplace culture could not be a mitigating factor. It was inappropriate given the employer’s client base (care of juvenile offenders), and should be remedied as soon as possible. Further, the supervisor had enough seniority to understand what harassment was, to take responsibility for his actions, and to understand that his behaviour was inappropriate in a context of caring for juveniles.

Mangiafico v Department of Human Services – Melbourne Juvenile Justice Centre AIRC PR963416 

'Off the job' harassment 

Two cases have addressed the issue of whether an employer is liable for sexual harassment that occurs either outside working hours when employees are not at work, or away from the employer’s work premises. 

Employer was 'vicariously liable'

The first case held that the meaning of 'in connection with employment' covers conduct by employees on the site of accommodation that the employer had provided for employees, even if the employees concerned were not actually working at the time. Therefore, the employer was vicariously liable when one employee sexually harassed another.

The harassment occurred inside the room of a female employee, when a male co-worker who lived in another room in the same building entered her room uninvited. This happened at night while both of them were off duty.

 

Only employees were allowed on-site, as visitors were prohibited. The two employees were only on-site because they were employees. The Federal Court held that that situation was equivalent to providing accommodation when employees attended a work-related conference, as it was accommodation provided for employees who might require it. Therefore it was 'in connection with employment'.

 

The possibility of harassment was foreseeable, given the accessibility and proximity of the employees’ rooms, but the employer took insufficient steps to prevent it.

South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130 

'Disrespectful familiarity' not sexual harassment

The second case involved a man who was intoxicated and made comments to female co-workers outside the office and while at a hotel. The Queensland Industrial Relations Commission held that his conduct was not serious enough to justify intervention by the employer in an outside-work situation. The incidents did not reflect seriously and adversely on the employer.

Also relevant was the fact that the co-workers were more shocked than offended by the conduct and were willing to continue working with him. They claimed they were more concerned about his alcohol management than his physical conduct. 

The Commission described the man’s conduct as 'disrespectful familiarity' rather than sexual harassment and not serious enough to justify dismissal. Also, the employer should have taken greater account of his intoxicated state and high degree of contrition shown afterwards. The Commission ordered his reinstatement. 

Johnson v Department of Justice and Attorney-General QIRC (TD/2005/23) 

 

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