Bullying

$466,000 awarded in damages to victim of sexual harassment at work: How to assist complainants and avoid litigation

Published - 25 June 2009
Updated - 9 August 2010

Despite widespread publicity and a greater awareness among managers and supervisors, sexual harassment remains one of the biggest issues in the Australian workplace.

Many employees fear making a formal complaint about sexual harassment, as the issue could prove a “career killer.”

So these victims are left with two choices – try to deal with it informally – or leave.

Sexual harassment or discrimination in the workplace not only affects employees.

It can have a devastating impact on employers in terms of lost productivity, staff changeover, staff morale and damage to reputation.

The recent judgement of the Federal Court of Australia in the case of  Poniatowska V Hickinbotham reported 23 June 2009 demonstrates just how devastating the effects of sexual harassment can be for both the victim and the employer if the issue is not dealt with properly.

The FCA awarded damages of $466,000 in favour of Ms Poniatowska for sexual harassment and subsequent discrimination she suffered in the workplace when she was unlawfully dismissed following complaints that she had been sexually harassed at work. The court also instructed her employer to pay Ms Poniatowska’s court costs.

An appeal by Hickinbotham Homes was turned down by the Full Court of South Australia on Tuesday 27 July 2010.

A national phone survey (2009) covering a five-year period found 84 per cent of sexual harassment incidents in the workplace were not reported.

This means only 16 per cent who had been sexually harassed during this period formally reported it or made a complaint.

The Australian Human Rights Commission survey was also conducted to measure the extent of sexual harassment among Australian workers.

Of those who did not make a complaint about sexual harassment the survey found:

  • 50 per cent didn’t think it was serious enough or were fearful of a negative impact on themselves
  • 21 per cent had a lack of faith in the complaint process
  • 29 per cent took care of the problem themselves

The survey found the most common type of sexual harassment reported was unwelcome sexually suggestive comments or jokes that made the respondents feel offended. This accounted for 56 per cent of respondents.

A further 31 per cent of those who experienced sexual harassment in the workplace during the five-year period were subject to physical harassment. This included unwelcome touching, hugging, cornering or kissing, inappropriate physical contact, or actual or attempted rape or assault.

The results of the survey indicated there may be pockets of sexual harassment across a broad range of workplaces. Nearly half of those who had been sexually harassed reported it had also happened to someone else in the same workplace.

Employees of large and medium organisations were more likely to observe other incidents of sexual harassment in the same workplace, compared to employees of small business.

In the modern workplace, technology has become a tool for sexual harassment.

About one in five of those who experienced workplace sexual harassment during the five-year period were subject to sexually explicit emails or SMS messages.

The majority of sexual harassment involved a male harasser and female target (62 per cent).

So what is sexual harassment?

According to the Commonwealth Sex Discrimination Act 1984 a person is sexually harassed if:

  • A person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
  • Engages in other unwelcome conduct of a sexual nature which offends, humiliates or intimidates the person harassed.

This may include making a statement of a sexual nature to a person – either or in writing.

Physical harassment may include:

  • Unwelcome touching, hugging, cornering or kissing
  • Inappropriate physical contact
  • Actual or attempted rape or assault.

Non-physical harassment may include:

  • Inappropriate staring or leering
  • Repeated or inappropriate advances on email, social networking websites or internet chat rooms by a work colleague
  • Repeated or inappropriate invitations to go out on dates
  • Intrusive questions about a person’s private life or physical appearance that offends
  • Sexually suggestive comments or jokes that make you feel offended
  • Sexually explicit pictures, posters or gifts that make you feel offended
  • Sexually explicit emails or SMS message
  • Requests or pressure for sex or other sexual acts.

According to the Australian Human Rights Commission survey, the majority of sexual harassment experienced in the five year period involved non-physical sexual harassment (69 per cent).

Those who experienced some kind of physical harassment were likely to be more offended and intimidated by the experience than those who experienced non-physical harassment.

And women are likely to feel more offended and intimidated by sexual harassment, compared to men.

So what should you do if you receive a complaint of sexual harassment from an employee?

Always take the complaint seriously, nominate a liaison person who handles the complainant but is not involved in any investigation or questioning of those accused of harassing conduct. As an employer you should acknowledge that being the victim of sexual harassment and making a complaint is highly stressful it is important to show sympathy, support and offer professional counselling.

Employers can assist themselves by making sure their policies and guidelines on how to report and respond to complaints is clearly written and accessible to staff and managers. These matters are often complicated and the tendency for people to make moral judgments about individuals conduct clouds the facts even more. The more instructive the policies the easier it is for managers to follow the correct process and thus ensure the fair treatment of all parties.

After assessing the initial complaint, minor incidents can be mediated or counselling given if all parties agree and no facts are disputed. In more serious cases or where facts are contested independent investigation is recommended to ensure due process is given to the victim and the accused. Once the facts have been determined by independent investigation a senior manager can make an informed decision about the appropriate action to be taken. This could include conflict resolution, disciplinary action, or changing the cultural within a work group. Employers need to understand their true exposure to court action and their responsibilities under the Occupational Health and Safety regulations and Anti Discrimination legislation.

Of those surveyed in the Australian Human Rights Commission survey, 72 per cent who made a complaint said the harasser had been dealt with.

This means they were either spoken to, disciplined, dismissed, formally warned, counselled, transferred or changed shifts or in serious cases, arrested.

But in many of these cases, victims reported experiencing a negative impact as a result of the complaints process.

This shows that the fear of making a complaint due to a negative personal impact is justified.

As well as effectively dealing with complaints, there is a strong business imperative for employers, in cooperation with relevant support agencies, to minimise the negative impact on those who experience it.

Consistent messages from the employer highlighting the seriousness of such behaviour, could help to increase the number of formal reports made.

Employers should clearly communicate how the complaints process works.

They should try to dispel any negative perceptions of the complaints processes that may exist in the workplace.

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