'So-called' jokes cost harassers $26,000

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'So-called' jokes cost harassers $26,000

The Queensland Anti-Discrimination Tribunal has ordered two employees who persistently sexually harassed a colleague to pay $13,000 each in costs and damages, with their employer jointly liable with each and so liable for $26,000.

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The Queensland Anti-Discrimination Tribunal has ordered two employees who persistently sexually harassed a colleague to pay $13,000 each in costs and damages, with their employer jointly liable with each and so liable for $26,000.

SC Savage said 'whether or not the remarks were intended as jokes the so-called jokes were ones with sexual connotations relating to the employee'. He awarded $10,000 in damages after finding the employee was forced to give up stable, well paid employment which he enjoyed apart from the harassment. 

He also found the harassment prompted the employee to suffer a substantial depressive illness.

Background

A Queensland boilermaker complained to the Anti-Discrimination Commissioner of sexual harassment by two of his work colleagues at Watkins Steel. He contended that Watkins Steel was vicariously liable for that harassment.

He alleged that the employees inquired about his sexual preferences, implied he was a paedophile, said to other employees that he 'often had sex with little boys' and that he frequented 'gay bars'. 

He said one of the employees had taken hold of him and proceeded to simulate acts of sexual intercourse with accompanying explicit commentary. He also gave evidence the employees called him a ‘gerbil’ which the tribunal took as a reference to a supposed practice of bestiality. He said he would be subjected to these sort of comments once or twice a week. The alleged culprits denied making the comments, but described the general atmosphere of the workplace as 'jovial'.

Findings

SC Savage found most of the remarks came within the definition of sexual harassment as they were self-evidently remarks with sexual connotations relating to the boilermaker. 

He said the suggestion that the conduct accorded with the generally jovial nature of the workplace was not consistent with the fact that nearly all the witnesses regarded it as universally repugnant. 

SC Savage also found that the physical confrontation which occurred between the boilermaker and one of his harassers concerning the repetition of remarks made it self-evident that they were aware their remarks offended him.

The Tribunal rejected the claim that the employee's failure to bring the harassment to management attention was strong evidence that his evidence was false and a recent invention. 

SC Savage said his reticence could be explained 'by reason of a misplaced bravado about his capacity to deal with such otherwise offensive conduct'. 

He said Watkins Steel took no reasonable steps to prevent harassment. The company’s 'open door' complaints policy was not enough to satisfy its obligations. Consequently, he found Watkins Steel vicariously liable for the conduct of the two employees.

History taken into account

The Tribunal heard that while a young child, the boilermaker was subjected to sexual abuse by a family friend. He was first treated for this by psychologists in 1999 at about the same time he was being harassed at work. SC Savage said that ruminating on this past history of abuse appeared not to have helped the situation, but despite this, the employee appeared to have enjoyed a comparatively happy, healthy and worthwhile working life until August 2001.

His psychiatrist’s evidence suggested that August 2001 was about the time he had explained to his parents about the childhood sexual abuse. The company submitted that it was this attempt to deal with his past rather than the workplace harassment which caused the boilermaker to give up his employment and suffer a depressive illness. 

SC Savage concluded on the balance of probabilities that it was the workplace harassment that led to the onset of depressive illness. 'Had the employee not been harassed as I have found, the employee would have been able to continue in his employment and continue to deal with the problems he had in confronting his parents concerning his past sexual abuse by others even if that had some consequence for his mood at relevant times. He would not have been (as I find he was) forced to leave his employment.'

The Tribunal found the total period of unemployment caused by the harassment was some 12 weeks putting the employee's total past economic loss at $8,604. SC Savage said that without the harassment he did not think the worker would have ceased work at all. He was, therefore, not willing to assess compensation on the basis of a mere acceleration of a condition which would have inevitably occurred.

On the question of damages for hurt and humiliation, SC Savage noted that the harassment had caused a depressive illness and so it was 'not merely a task of compensating for emotional hurt occasioned by offensive words but for physical injury'. 

He distinguished between the injury occasioned by the harassment and that occasioned by other factors saying it was the harassment which led to the physical ailment. 

He allowed $10,400 (inclusive of interest) in damages plus $6,000 in costs bringing the total to $26,000. As he found the two harassers contributed equally to the harassment he said each should be liable for one half of the assessed damages and costs or $13,000. He found Watkins Steel was jointly liable with each and so liable for $26,000.

See: Lulham v Shanahan, Watkins Steel and others [2003] QADT 11 (5 August, 2003).

 
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