Payout for vulgar graffiti in work loos

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Payout for vulgar graffiti in work loos

A female RailCorp manager has been awarded $20,000 in damages after proving she was sexually harassed by 'highly offensive' and 'derogatory' graffiti about her that was found in the work toilets.

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A female RailCorp manager has been awarded $20,000 in damages after proving she was sexually harassed by 'highly offensive' and 'derogatory' graffiti about her that was found in the work toilets.

The manager of RailCorp's Train Crew Assignment Centre claimed four male workers wrote lewd graffiti in the men's toilets which described her as a 'slut face' and depicted her doing various sexual acts on the workers and her husband, who also worked for RailCorp.

First appearing on the toilet walls in May 2004, it reappeared again in July. In addition, she alleged that in 2005 the workers had also left a pornographic magazine under her door.

The manager claimed she was sexually harassed by the content and recurrence of the graffiti and that RailCorp, despite her repeated complaints to HR about their behaviour, had not taken all reasonable steps to stop the workers' actions.

Denial from employer

RailCorp claimed it had taken all reasonable steps to prevent conduct by its employees that would be viewed as sexual harassment.

It pointed to its Code of Workplace Standards which sets out required standards of behaviour by its employees, including in relation to issues of discrimination and harassment.

RailCorp argued both incidents of graffiti were investigated by engaging forensic handwriting experts to discover who had written the messages. Further, the organisation said, it had implemented a system of regular checks of the area and had, after some time, installed closed circuit television to monitor the stairs near the toilet area and applied anti-graffiti paint to the walls.

RailCorp told the Administrative Decisions Tribunal that because the workers responsible for the graffiti could not be found, 'it was not possible to reprimand them or to take further action'.

However, in September and October 2004 the centre staff attended briefings on workplace behaviour, which included discussion of the issues of previous harassment, what constitutes inappropriate behaviour, the human resources policies dealing with issues of harassment, and that harassment would not be tolerated and could result in the termination of employment.

Policies not enough

Tribunal members Gill and Mooney found that, because the briefings did not involve all staff and were not compulsory, this was a 'fundamental flaw' in the remedial steps taken by RailCorp to address the issue of inappropriate workplace conduct.

' … in that it meant that it was possible that some staff, perhaps those who were least aware of anti-discrimination, sexual harassment and bullying policies, were able to avoid attending the briefing sessions,' the Tribunal said.

Gill and Mooney said that in order for RailCorp to assert it had taken the appropriate steps to avoid being vicariously liable for the actions of its employees, it should have also made sure they were all aware of the policies.

'Their failure to meet this duty is evidenced by the fact that, despite all of the investigations and briefings that RailCorp undertook, the graffiti kept reappearing,' the Tribunal said. 'It is not enough that RailCorp has policies that prohibit inappropriate behaviour, discrimination and sexual harassment in the workplace. They also need to make sure that they do not authorise the conduct. Employers need to adequately inform their staff of those policies and to properly explain the implications for their breach.'

Further, the Tribunal noted that the staff training did not occur until September, well after the graffiti incidents.

'RailCorp's delay in informing staff of its policies, especially given the highly sexualised nature of the graffiti and the widespread humiliation it caused Ms Hunt, causes the Tribunal to find that it is vicariously liable for the first two incidents of graffiti,' it found.

The placement of the pornographic magazine under her door was also ruled sexual harassment.

Damages

In assessing damages, the Tribunal accepted the worker had suffered from mental exhaustion as a result of periods of hyper-vigilance and insomnia, episodes of nausea when confronted with instances of graffiti, depression and feelings of worthlessness, dissociation to the events, low moods and headaches.

She was diagnosed with having suffered from a chronic adjustment disorder with anxious and depressed moods.

She was awarded $20,000.

Hunt v Rail Corporation of New South Wales [2007] NSWADT 152 (24 July 2007)

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