Employer cleared of 'condoning'sexual harassment by co-worker

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Employer cleared of 'condoning'sexual harassment by co-worker

A NSW hire-car driver who was sexually harassed by a co-worker has won a total $10,000 in damages, but the employer has been cleared of permitting the behaviour, because it acted immediately once it became aware of the harassment and took the matter seriously.

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A NSW hire-car driver who was sexually harassed by a co-worker has won a total $10,000 in damages, but the employer has been cleared of permitting the behaviour, because it acted immediately once it became aware of the harassment and took the matter seriously.

Background

A hire car driver alleged she had been discriminated against on the grounds of sexual harassment by her employer, Newcastle Hire Cars Pty Ltd. She subsequently added a principal of the company and its radio operator to the complaint.

The driver alleged that both men had repeatedly asked her out, made suggestive comments and attempted to touch her, despite her clearly stating she did not want to be touched. She said the radio operator’s persistence caused her to have her home phone disconnected and to also avoid returning to the hire car base between jobs. She said that she did not want to make any complaints as she was concerned the action might jeopardise her job. The driver also alleged that an 'offensive' and 'embarrassing' calendar showing semi-naked women was on display in the staff area and that pornographic magazines were strewn around the meal room.

She said that the principal arranged a meeting with her when he became aware of her problems with the radio operator. She said it was very difficult for her as she did not want to create any problems and felt it was hard enough fitting into a predominantly male work place without risking being singled out over this issue. She said that she enjoyed the job and she was concerned was that she might make her working situation worse, or lose her job. The principal insisted that she should come to him if there were any problems as that was the only way to solve them. She was also assured her that she had the right to be comfortable at work and to rest in the meal room in between jobs. The office manager, also present at the meeting, stated: 'We can get into a lot of trouble about this.'

The principal said that he had received complaints from other employees alleging favouritism by the radio operator in his allocation of jobs to the driver and called a meeting to discuss this and other issues. Despite having said she didn’t want the matter dealt with at a general staff meeting, the driver began questioning the principal about the company’s sexual harassment policy which turned into an argument between the two. She resigned the next day.

Findings

The Administrative Decisions Tribunal(NSW) noted that sections 22A-J of the Anti-Discrimination Act(NSW) which prohibit sexual harassment by co-workers commenced on 4 July 1997, and were not retrospective. Consequently, any allegations against the principal and radio operator complained of prior to July 1997 would not be caught by sections 22A and 22B.

The tribunal heard equivocal evidence that the principal asked the driver out on several occasions. It found that the evidence was not sufficient to establish that he had sexually harassed the driver because she never indicated she did not want to go out with him so there was no evidence to suggest he was aware that his conduct was unwelcome. 'The evidence at its highest is that when [the principal] did proposition [the driver], he accepted her rejection with good grace and did not ask her out again.' Her allegations that the principal touched her could not be dated and so the tribunal said they must fail because it could not be sure they did not happen before the commencement of sections 22A and 22B.

In regard to the allegations against the radio operator, the tribunal preferred the driver’s evidence to the operator’s denials. It found that he continued to call her at home to ask her out which resulted in her having her phone disconnected in 1998. This conduct, therefore, fell within the scope of section 22 B. It found the man’s conduct was sexual harassment because it was both sexual and unwelcome. 'The persistent conduct was such that a reasonable person in the circumstances would have anticipated that she would be offended, humiliated or intimidated.' It fined the operator $8,000 for his conduct.

The driver also sought orders against Newcastle Hire Cars on the basis that it permitted and condoned the sexual harassment by the radio operator and also failed to take reasonable steps to prevent it. Section 53(1) of the Act provides that an employer will be liable for the acts of their employee which amount to a contravention of the Act, 'unless the...employer did not, either before or after the doing of the act, authorise the...or employee, either expressly or by implication, to do the act.'

The tribunal found that the company did have a sexual harassment policy which was developed when the company applied for a Comcar contract. However, despite it being distributed to all staff, the evidence suggested that many were not aware of the content or effect of such a policy.

The tribunal said there was no evidence to suggest the company was aware or should have been aware of the radio operator’s conduct prior to late April 1998. When it was brought to the principal’s attention, he immediately arranged a meeting with the driver and she was assured she had a right to feel safe in the workplace. It was also common evidence that the driver did not wish to make a complaint against anybody at Newcastle Hire Cars and did not confirm that she had her phone disconnected because of the radio operator.

The tribunal concluded that the employer took immediate action upon becoming aware of a potential sexual harassment and that it took the matter seriously. It said it was reasonable that the matter was not dealt with at the staff meeting as this would have been inappropriate and insensitive. 'We also accept that within a time frame of two days the employer had not had sufficient time to consider how they might appropriately deal with the issue.' Consequently, the company was not in breach of section 53 by failing to prevent sexual harassment. The tribunal also found there was no evidence that the company’s conduct amounted to constructive dismissal of the driver.

Finally, the tribunal found that by operation of s 53(1) of the Act the company was liable for the display of sexually provocative calendars in the workplace and that such conduct constituted a contravention of the Act (s22B (2).) It also noted that the calendar was more than a sexually provocative calendar, it was a promotional calendar for Newcastle Hire Cars.

It found $2,000 an appropriate fine.

See: Webb v Newcastle Hire Cars Pty Ltd & Ors[2004] NSWADT 142, (13 July 2004).

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