No credible evidence found of workplace assault or harassment

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No credible evidence found of workplace assault or harassment

The NSW Court of Appeal has rejected a Department of Community Services (NSW) employee's attempt to sue her employer for vicarious liability over alleged assault and sexual harassment by a colleague in the workplace.

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The NSW Court of Appeal has rejected a Department of Community Services (NSW) employee's attempt to sue her employer for vicarious liability over alleged assault and sexual harassment by a colleague in the workplace.

The appeal court upheld Acting Judge Boyd-Boland's findings that the colleague's 'unintentional' touching did not constitute assault and that there was no credible evidence to support the allegations of sexual harassment.

The appeal court rejected as evidence a series of DOCS' records which the employee alleged showed her colleague had a prior practice of touching and that this knowledge was relevant, at least to some extent, to breach of duty of care on the part of the state. It said it 'would have been intolerable for [the colleague], still more the state, to have had to meet the generalised and often second-hand or worse assertions in the documents'. The appeal was dismissed with costs.

Background

The employee-appellant worked as a social educator at an adult day placement centre for profoundly handicapped adults operated by the Department of Community Services. She alleged that in the course of employment, a work colleague, who had an artificial left arm, assaulted and battered her on four occasions as a result of which she suffered injury and sought damages. She further alleged that the colleague had sexually harassed her.

The employee also sued the State of New South Wales as being vicariously liable for her work colleague's actions, for failing to take all reasonable steps to provide a safe working place for employees, and for breach of a contractual promise to provide a safe working place.

At trial, Acting Judge Boyd-Boland found that the touching did not constitute assault or battery and, furthermore, he was unable to find any credible evidence to support the allegations of sexual harassment. On appeal, the employee claimed the trial judge had erred in his interpretation of one of the incidents and this reflected on the findings about the other events, and secondly, he had erred in rejecting documents tendered as tendency evidence.

Findings

The Court of Appeal looked at the employee's evidence that on two consecutive days the colleague had put his hand on her shoulder several times. The colleague's version was that he definitely tapped her on the shoulder on one occasion, but could not remember doing so more than that. His purpose in doing so was to draw her attention to something when the noise level became so high that normal vocal communication was no longer possible. Acting Judge Boyd-Boland found that he had probably touched her shoulder on one or two occasions, but on each occasion with innocent intent. The appeal court found that 'since the question is entirely one of demeanour, his Honour was entitled to find as he did'.

The employee also alleged there were two further separate incidents where the colleague deliberately touched her breast. In the first instance, which took place in the centre's minibus, the colleague said he could not remember touching her, and if he did so it was unintentional. Acting Judge Boyd-Boland supported this interpretation. The appeal court found that though the trial judge had made a mistake in finding that the colleague had not said 'sorry', the error did not invalidate the finding that the touching was unintentional. The second incident, in which the colleague was alleged to have touched the employee's breast as he leaned across her to engage the attention of a disabled client sitting next to her, was dismissed by the appeal court as 'a most unlikely story'.

The employee tendered a series of documents from DOCS' records concerning the colleague's conduct when employed by DOCS at another workplace prior to his transfer to the centre. She said the documents showed the colleague had a prior practice of touching and that this knowledge was relevant, at least to some extent, to breach of duty of care on the part of the state. Her appeal complained of failure to admit these documents against both the state and her colleague as evidence of the facts to which they referred.

The appeal court found it 'would have been intolerable for [the colleague], still more the state, to have had to meet the generalised and often second-hand or worse assertions in the documents'. It said the trial judge could not have found substantial probative value in the documents. To the extent that they could prove that on other occasions the colleague had acted in a particular way, they were still inadmissible because of the same generality and often remoteness. 'The rejection of the documents was inevitable.'

The appeal was dismissed with costs.

See: Martin v State of NSW & Anor [2002] NSWCA 337 (21 November 2002) - Spigelman CJ, Meagher and Giles JJA.

 
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