A recent decision of the Victorian Civil and Administrative Tribunal (VCAT), which has resulted in an employer being required to pay an employee over $53,000 in compensation, has highlighted the need for employers to inform themselves of their obligations in relation to eliminating workplace sexual harassment, victimisation and sex discrimination.
In the decision of Kumari v Bervar Pty Ltd (Human Rights)  VCAT 21, the VCAT was tasked with assessing the damages to be paid to an Applicant who had been subjected to sexual harassment, discrimination on the grounds of her race and victimisation in the workplace.
The VCAT found that the employer, Bervar Pty Ltd t/as Della Rosa Fresh Foods, had contravened the Equal Opportunity Act 2010 (Vic) (the EO Act) by the following:
- a fellow employee sexually harassed the Applicant by looking at her breasts rather than her face when he spoke to her;
- the Applicant’s immediate manager treated her unfavourably due to her race by saying “you are Indian, I don’t like Indians, they always cause problems”;
- the Applicant’s manager and the employer’s director directly discriminated against the Applicant by treating her unfavourably due to her sex in their investigation into her complaint about sexual harassment;
- the employer victimised the Applicant by directing her to take annual leave because she had made a complaint about sexual harassment;
- the employer treated the Applicant unfavourably because of her sex by transferring her to a different workplace because she made a complaint; and
- the employer treated the Applicant unfavourably by not informing her of her transfer until the morning of her return to work, and this was because of her sex and race.
In assessing the appropriate amount of damages, the VCAT took into account the employer’s conduct which exacerbated the effect of the sexual harassment on the Applicant.
In particular, the VCAT noted that the Applicant was directed to go to the director’s office after making her complaint, while the employee who engaged the sexual harassment was not, and that the manager’s comments to the Applicant conveyed disbelief and amounted to a trivialisation of her complaint.
The VCAT noted the obligation on employers to provide a safe workplace to all their employees, which necessarily required freedom from sexual harassment, freedom from discrimination, and application of fair procedures for investigating workplace complaints.
However, the employer had provided no evidence of “even the most basic workplace training in these matters having been conducted for employees and managers”. Instead, the evidence showed that the owner of the business had not informed himself of, and there was a “high handed disregard” for, his statutory obligations as an employer under the EO Act.
The VCAT considered that the sexual harassment could have been simply and effectively ameliorated by the employer but instead, the conduct was exacerbated and significantly increased the impact on the Applicant.
In addition, the VCAT also noted that all Victorian employers have a positive statutory duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation as far as possible. It re-iterated the seriousness of that obligation and warned that:
“Victorian employees have a legitimate expectation that they will be treated fairly when they make a complaint about contravention of the EO Act. An employer who is not alive to that expectation, and its obligations under the EO Act, is at risk of injuring their employees if their conduct contravenes the Act.”
In total, the VCAT ordered the employer to pay the Applicant compensation for injury, loss and damage suffered as a result of its contraventions of the EO Act in the amount of $53,241 (comprised of $38,000 for non-economic loss and $15,241 for economic loss).
Lessons for employers
This decision is particularly noteworthy for Australian employers in the context of the recent changes to the Sex Discrimination Act 1984 (Cth), which introduced a positive duty on persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, so far as possible:
- discrimination on the ground of sex;
- unlawful sexual harassment;
- unlawful harassment on the ground of sex;
- workplace environments that are hostile on the ground of sex; and
- acts of victimisation.
It is critical that employers review their current anti-harassment and anti-discrimination processes and procedures to ensure they are compliant with this positive duty and that senior management and HR are properly trained in how to deal with complaints of this nature.
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