Compensation for Sexual Harassment and Sexual Assault at Work (Vic)

In Victoria, the Equal Opportunity Act 2010 defines sexual harassment and makes it illegal in certain places, including the workplace. Sexual harassment is defined as sexual behaviour that is unwelcome and causes the victim to feel intimidated, humiliated or offended, and the circumstances are such that a reasonable person could have expected that reaction. This article outlines deals with compensation for sexual harassment and sexual assault at work.

What is sexual harassment?

Some examples of sexual harassment according to how it is defined in the Equal Opportunity Act 2010 include:

• Remarks made about a person’s appearance or personal life;
• Behaviour that is sexually suggestive such as staring;
• Touching without consent;
• Comments or jokes that are sexually suggestive;
• Sexually offensive images or objects displayed inappropriately;
• Repetitive requests for dates, sex or sexual favours;
• Emails, texts or social media posts that are sexually explicit;
• Sexual assault (defined below); and
• Other sexually suggestive behaviour.

The intention of the person perpetrating sexual harassment is not relevant. If the action meets the definition of what is sexual harassment, then it is sexual harassment.

In some circumstances, compensation for sexual harassment at work may be available.

The Sex Discrimination Act

The Sex Discrimination Act 1984 is federal legislation that also makes sexual harassment illegal. It applies to sexual harassment that occurs in any part of Australia, including Victoria.

Sexual assault

Sexual assault is a criminal offence and is defined in section 40 of the Crimes Act 1958 as the intentional touching of another person that is sexual where there is no consent to the touching. Further, the person performing the touching does not reasonably believe that the person they are touching is consenting. The maximum criminal sentence for this offence is ten years imprisonment.

Duty of employers to minimise the risk of sexual harassment and sexual assault at work

Under the Equal Opportunity Act 2010, employers have a positive duty to take reasonable steps to prevent sexual harassment occurring at work. This duty is owed to all workers at a workplace whether they work full-time, part-time or on a casual basis or are employees, contractors or unpaid volunteers. It also relates to all work stages in an organisation including the recruitment process and the termination process.

This positive duty means that where sexual harassment or sexual assault has occurred at work, and the employer has not met this duty, a victim may be entitled to compensation for sexual harassment or sexual assault at work.

Recent cases on compensation for sexual harassment and sexual assault at work in Victoria

Some recent cases in Victoria related to compensation for sexual assault or sexual harassment at work include the following:

Kerkofs v Abdallah (Human Rights) [2019] VCAT 259

This was a decision of the Victorian Civil and Administrative Tribunal (VCAT). VCAT awarded $150,000 as compensation for sexual harassment and sexual assault in the workplace.

In this case, the perpetrator of the sexual harassment and sexual assault had called the victim names such as “sweetie”, “honey”, “baby” and “sexy”. The perpetrator had also got into bed with the victim and touched her after she had collapsed at work. The Tribunal found that the employer did not conduct a proper investigation into the complaint of sexual assault and sexual harassment when the victim made it. The Tribunal also found that the employer had failed to take appropriate measures to prevent sexual assault or sexual harassment from happening in the workplace.

Collins v Smith (Human Rights) [2015] VCAT 1992

The applicant, in this case, was Ms Collins. She was awarded more than $330,000 in damages as compensation for sexual harassment at work. The sexual harassment had occurred by the employer of Ms Collins, Mr Smith, in a small post office in Geelong in Victoria. The sexual harassment included:

• Unwelcome touching of Ms Collin’s breasts and bottom;
• Requests for sex;
• Requesting sexual favours in return for providing shifts on Saturdays;
• Sexually explicit text messages and phone messages; and
• Unwelcome attempts to kiss Ms Collins.

As a result of the conduct, Ms Collins had developed post-traumatic stress disorder, depression and anxiety. She required ongoing medical treatment for these conditions. Ms Collins’ personal relationships, including her marriage, had also been adversely affected by the conduct.

Matthews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728

In this case, the Supreme Court of Victoria awarded Ms Mathews, the victim of sexual harassment, $1,360,027 in compensation for sexual harassment, abuse, and bullying at work. $380,000 of this compensation was for psychiatric injuries and a physical jaw injury she had sustained from grinding her teeth due to the harassment, abuse and bullying. $283,942 was for economic loss that she had experienced between 2010 and 2016, and $696,085 was for future losses that were expected as evidence had been provided and accepted that she was unlikely to work again.

The employer, Winslow Constructors, was a construction company and Ms Mathews had been a labourer. Winslow Constructors was found to have been negligent in not providing a safe workplace that had led to the treatment of Ms Mathews that was the subject of the claim. The sexual harassment, abuse and bullying to which she had been subjected included:

• Being called names such as “spastic”, “bimbo” and “useless”;
• Being shown pornographic material and ask if she could replicate what was in it;
• Being asked about her sex life;
• Having a colleague grab hold of her and mimic a sexual act on her; and
• Having a colleague state that he would follow her home, rip her clothes off and rape her.

Ms Mathew’s manager was one of the perpetrators of the harassment so she could not complain to him. She eventually complained to another person in the business she thought was responsible for managing such complaints, and this person asked her to come to their house and have a drink to talk about it. Ms Mathews ended up resigning from her role due to the sexual harassment, abuse and bullying.

If you require legal advice or representation in relation to compensation for sexual harassment or in any other legal matter please contact Armstrong Legal.