​Leering at breasts is not OK

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​Leering at breasts is not OK

Demoting and transferring an employee to another job site because she complained a colleague started at her breasts amounted to victimisation, a tribunal has ruled.


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‘It should by now be axiomatic that a man who, instead of looking a woman in the face while talking to her, focuses his eyes on her body, when her body is not the mutual topic of conversation, is engaging in unwelcome conduct of a sexual nature.’

This was the view taken by a tribunal after hearing a woman’s allegations of sexual harassment, discrimination and victimisation at work.

It pointed out that it is 'well established that leering or staring can amount to unwelcome conduct of a sexual nature'.

The allegations

The woman was employed by a Melbourne company that manufactures bread and pizza products for distribution to retailers. The hearing in the Victorian Civil and Administrative Tribunal concerned the events surrounding and following her complaint of sexual harassment by a fellow employee.

She said that when the co-worker talked to her, he made her uncomfortable because he did not look her in the eye when talking, but looked instead at her chest area. Initially she thought she might be mistaken in finding it objectionable, but when she tried to raise the matter with him, he responded angrily. 

She then raised it with her manager, who had a word with the co-worker and accepted his denials. She claimed the manager said to her: ‘You are Indian, I don’t like Indians, they always cause problems’. 

Following this, she was summoned to a formal meeting in the office of the managing director, who challenged her complaint. She claims he also directed her to take a week’s annual leave. She alleges this was unfavourable treatment because she wanted to save her annual leave credit for a later date. 

The co-worker was not required to attend a meeting in the managing director’s office – instead, the MD went to the man’s worksite and spoke with him there. The two people affected by the complaint were thus treated very differently.

The woman was later transferred, with inadequate prior notice, to a position at another site. She did not want to accept the position as she felt it was a demotion, having no supervisory duties, but she was given no option. She took leave, did not return to the workplace and in due course her employment was terminated. 

She alleges that this amounted to discriminatory treatment on the basis of her gender and her race, contrary to the Equal Opportunity Act 2010. She claimed compensation for contravention of the EO Act, asserting that this unfavourable treatment ultimately led to the termination of her employment and amounted to victimisation under that Act.

At the tribunal

A hearing in March 2019 heard conflicting evidence from various parties, though the offending co-worker was not called to give evidence. Tribunal member Louise Johnson found that the woman was subjected to unfavourable treatment when she was directed to take annual leave, but was not satisfied that the unfavourable treatment occurred because of her gender, sex or race. 

Member Johnson did find, however, that the decision to remove her from her position with no proper notice and transfer her to another site was made because she’d complained of sexual harassment, was a woman, and more women were employed at the other site. The tribunal considered this amounted to unfavourable treatment and victimisation, and direct (but not indirect) discrimination in terms of the EO Act.

However, the question of the detriment the woman had suffered as a result of this unfavourable treatment – and what compensation, if any, should be awarded for the loss, damage or injury she suffered in consequence of the contravention – was not addressed. Member Johnson therefore adjourned the hearing, with orders for the parties to file and serve written submissions on the question of detriment. 

Subsequently, the woman engaged solicitors who, having been unable to obtain a copy of an audio recording of the hearing, requested the written reasons for the member’s findings, to assist them in making submissions on the question of detriment.

In response, the member has provided her reasons, which will stand as the reasons for her final orders, once the question of detriment has been addressed.

The bottom line: Even in cultures where direct eye gaze is itself disrespectful, it is never the correct response to direct one’s gaze at a woman’s breasts. And if a complaint of sexual harassment is made, it is never the correct response to suggest the person complaining is a troublemaker because of their race or ethnicity.

Read the judgment

Kumari v Bervar Pty Ltd t/as Della Rosa Fresh Foods (Human Rights) [2019] VCAT 1654 (25 October 2019)
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