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Reliance on harassment policy failed to protect employer

As an employer, unless you can show you took reasonable steps to prevent the conduct, you may be liable for any acts of sexual harassment committed by your employees in the course of their employment.

In order to minimise, or hopefully avoid, vicarious liability as an employer, there is a need to demonstrate that appropriate steps have been taken not only proactively prior to any incidents occurring, but also post-incident such as the investigation of any allegations.

A recent decision in the South Australian Employment Tribunal (SAET) in the case of Evans v Pasadena Foodland and Crugnale (2019), a supermarket and its head chef were ordered to jointly pay an employee $30,000 in compensation as a result of the employer having failed to properly investigate a sexual harassment complaint.

In this case, the female employee alleged that the head chef had deliberately brushed past behind her on three occasions in one day.  The employee claimed that the chef had pushed his body up against hers and had ran the palm of his hand on her buttocks as he walked past. The employee further alleged that on the third occasion, she could feel something hard press up against her, which she thought could have been a belt buckle, or his erection.

After the employee reported the incidents to her employer, management reviewed the CCTV footage and decided they saw “nothing of concern”. The CCTV security footage was destroyed two weeks later.

During the SAET hearing, both the employer and the chef denied that any sexual harassment had occurred and that the touching was nothing more than “accidental”.

The chef stated that because of his larger build and the narrow workspaces in which they operated it was more likely for him to bump into the employee. The chef stated that the employee could not have felt an erection as it was not capable of extending past the girth of his stomach, nor was he wearing a belt at the time of the alleged offence.

The employer argued that it had taken reasonable proactive steps to prevent sexual harassment from occurring by:

  • maintaining a workplace policy for the prevention and reporting of sexual harassment;
  • ensuring the employee who had allegedly engaged in sexual harassment was aware of and understood that policy prior to employment; and
  • investigating the complaint.

Despite these steps having been taken, the SAET Deputy President Judge found that the employer had failed to:

  • properly train staff in relation to sexual harassment and the procedure by which complaints would be handled.
  • properly investigate the employee’s claims.

It was held that the employer had only made attempts to thoroughly investigate the matter approximately one month after the alleged incident, following an altercation occurring between the chef and the employee.

Given the seriousness of the allegations raised by the employee, the employer should have conducted a thorough formal investigation at the time of the allegations having been reported and the matter should have been escalated to senior management.

It was found that the investigation which was conducted was insufficient due to:

  • a proper statement not having been taken from the complainant in a timely manner and in a private place. Rather the statement was taken on the shop floor;
  • the precise allegations were not put to the perpetrator and a statement was not obtained from him in a timely manner;
  • potential witnesses were not interviewed in a timely manner;
  • the CCTV footage was not reviewed and shown to the parties, and was subsequently deleted; and
  • the outcome of the investigation was not reported to the parties in a clear and timely manner.

The employer’s contention that the employee’s history of being late for work or warned about her performance negated or diminished the likelihood of her complaints being true was rejected.

While the employee sought $150,000 in general damages, the Judge held that this amount was “excessive” and “must be confined to the conduct on that day” as the sexual harassment was “not of the most serious kind nor did it continue over a period of time”.

However, the employer and chef were both found to be liable for general damages including “psychological harm, suffering and hurt feelings” they had caused to the employee, and both parties were ordered to jointly pay the employee $30,000 in compensation.

A sexual harassment claim, particularly a poorly managed one, can have a significant financial and reputational impact on your business. As such, it is essential that appropriate actions are taken to protect yourself both before, and after, an allegation is made.

Should you require support with developing your workplace harassment policy or training program, or if you require support with how to address a harassment claim in your workplace, please do not hesitate to contact a member of our HR advisory team on 1300 720 004 or advice@hradviceonline.com.au

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