Employer liable for sexual harassment of agent

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Employer liable for sexual harassment of agent

A voluntary club president, who was also a club director, has been held to have acted as an agent of the club when he sexually harassed an employee at a staff Christmas party.

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A voluntary club president, who was also a club director, has been held to have acted as an agent of the club when he sexually harassed an employee at a staff Christmas party.

The employee alleged that at the staff Christmas party, the President took her by the hand and pulled her onto the dance floor. He proceeded to make physically explicit his attraction for the employee. The employee told him to stop and tried to push him away, but to no avail. The incident happened in full view of many staff members and directors of the club.

The employee led evidence that she felt humiliated and embarrassed by what had taken place. The complainant also gave evidence that the President had made suggestive comments to her on two previous occasions. The employee complained to the club’s board of directors, which led to the suspension of the President from membership for one year. The employee, however, was not satisfied with this because her complaint had not been dealt with as one of sexual harassment.

The employee applied to the Equal Opportunity Tribunal which held that the President’s conduct constituted both a discriminatory condition of the employee’s employment and a detriment based on sex within the terms of the Anti-Discrimination Act 1977(NSW).

President acted as agent

The Tribunal further held that the President of the club, when acting in that capacity, was acting as the club’s agent, notwithstanding the honorary nature of the position.

The Tribunal held that the President, when he made the previous suggestive comments to the employee as well as when he attended the Christmas party, was acting in his capacity as the club’s president on each occasion and that the offending acts were committed while he was ostensibly performing his duties as the club’s president.

Was the President on ‘a frolic of his own’?

The Club sought to argue that that it had not authorised, either expressly or by implication, the President’s conduct. The club argued that the President was on ‘a frolic of his own’, particularly in relation to the Christmas party incident, and therefore his conduct was not authorised by the club.

The club also relied on the efficiency with which it arranged to have the Christmas party complaint dealt with as well as the fact that the club had a clearly defined written policy of not tolerating sexual harassment. This policy had not, however, been given to staff or directors, or discussed by them at a board meeting, but was pinned up on the notice board.

The Tribunal noted that no evidence had been led concerning the specific procedure for lodging a sexual harassment complaint or whether the procedure had ever been discussed with staff. The employee’s complaint had been noted in a director’s log, which the Tribunal described as ‘a singularly inappropriate place to record delicate matters such as sexual harassment complaints’.

The Tribunal was also not satisfied that there was any training on sexual harassment available to the staff or any guidance given to them about how to handle conduct engaged in by either management or the directors, which might be classified as sexual harassment.

The Tribunal held that there had been no real attempt by the club’s management to communicate to directors the existence of the club’s sexual harassment policy and the importance of not engaging in conduct which might contravene the relevant provisions of the Anti-Discrimination Act1977(NSW).

The Tribunal concluded that the club was liable for the president’s actions because it had failed to establish that it did not authorise them. The President was found to be jointly liable. The club and the President were held to be jointly liable to pay the woman $15,500 damages, plus $4,757.65 costs (Wheeler v Shellharbour Golf Club Limited, No 85 of 1995, 13 May 1997).

This case highlights the fact that employers have a responsibility to ensure that voluntary office holders, such as directors, are fully aware of the requirements of the laws prohibiting sexual harassment and discrimination.

 

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