Sexual harassment has undergone a number of changes in recent times:
- The extension of powers of the Sex Discrimination Commissioner
- An ability for employees to make an application for a stop sexual harassment order in the Fair Work Commission
- Confirmation of a positive duty required by employers to proactively take steps to prevent sexual harassment
- Sexual harassment is defined as serious misconduct in law
Damages for successful sexual harassment claims have risen with a number of avenues to now file a complaint of sexual harassment.
In the matter of Leung v Chung (Human Rights) [2023] VCAT 1193 the original decision only awarded $10,000 against a colleague for slapping and patting her bottom on several occasions.
To complicate matters, the employer was in liquidation which limited the potential avenues for the employee and eventually made a claim in the Victorian Civil and Administrative Tribunal. The original decision was appealed and the Victorian Supreme Court found the award of damages as “manifestly inadequate”.
In the subsequent case, an award of damages of $110,000 was made and $29,250 for lost wages.
Why this case matters?
Sexual harassment has in the past been a difficult area to complain about however with several avenues for litigious proceedings this is fast becoming an ever-evolving problem for Employers and HR teams.
This case demonstrates that the Court in general will no longer allow smaller damages to be awarded with a very clear view that sexual harassment should be stopped and prevented.
With so many different avenues to file a complaint taking proactive steps will be the key to abiding by the positive obligation but also preventing or at least mitigating claims in the future. Some steps suggested include:
- Sexual harassment training with all staff – the basics of what is sexual harassment and if observed what action to take
- Sexual harassment training for management and leadership teams – with a particular focus on the positive obligation, intersection with other legal obligations such as general protections, workplace health and safety and psychosocial risks and hazards and how to deal with complaints of sexual harassment
- Reviews of sexual harassment policies and procedures
- Updating and reviewing employee assistance programs
- Ensuring there are clear workplace investigation processes in place – legal professional privilege, external resources, consideration of bias and conflict, clear investigation plans
- Board updates – ensuring board members understand the sexual harassment risks, processes and positive obligations to discharge
Our Employment Lawyers at South Geldard Lawyers have essential expertise in preventing these issues from occurring in the first place and helping with the legal issues when they do occur. Feel free to reach out on (07) 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation-free consultation.
