Sexual harassment and predatory behaviour can happen to anybody. When most people think about this type of conduct, it is generally in the context of male-to-female harassment or, perhaps more rarely, female-to-male harassment. However, this is simply not the case – sexual harassment can be perpetrated by anybody towards anybody.
A recent decision of the Civil and Administrative Tribunal of NSW highlights the potential for employees to be victims of sexual harassment and victimisation in the workplace, regardless of their gender.
The decision in Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty also affirms the entitlement of workers to financial compensation when they have been subjected to sexual harassment.
In Kordas, the worker complained about various instances of inappropriate behaviour and sexual harassment during his employment as an apprentice hairdresser working for the respondent.
The behaviour complained of by the worker included:
- Being told by his employer that workers were similar to racehorses because ‘they need a pat on the bum to go faster’.
- Having his supervisor tell clients that he and the worker were similar to a gay couple and that they were very ‘close‘.
- Being followed into a private area, slapped on the buttocks with a ruler by his trainer and being asked to smack him back because the trainer ‘like[d] being slapped on the bum‘.
- Humiliation by the trainer when he threw a hair clip onto the ground, in the worker’s opinion, because the employer wanted to see him bend over.
- The trainer complaining that the worker had incorrectly clipped a cape onto a client
- Feeling harassed when the worker asked the trainer if he felt they got along and the response was yes, because ‘you’re my bitch‘.
- Upon complaining to his employer and asking why he was referred to as the salon ‘bitch‘, being told ‘I used to work in a restaurant. All the boys used to grab me by my boobs‘.
- Being grabbed around the waist and physically moved by his supervisor instead of being asked to move out of the way.
- Having his palm stroked in a flirtatious manner by his employer when he was handed money for errands.
The worker had initially complained to his boss, who was also the director and owner of the business running the hair salon, about being victimised. But no action was taken, and the worker was ultimately dismissed.
The history of complaints
The apprentice stated that he had not complained initially about the inappropriate behaviour because he had wanted to keep his job.
However, in February 2015, the worker finally complained to the employer about various issues he was experiencing, including very low wages, ongoing harassment and feeling that he was being sabotaged. Although the employer initially promised that everything would be sorted out, he then made the above mentioned comment, likening hairdressers to racehorses.
At this time, the worker demanded changes in his treatment, but the employer denied ever having received any complaints or personally witnessed any harassment.
The employer then advised the worker that there were no senior staff available to continue his training and dismissed him. The stress and emotions suffered by the worker as a result of this treatment ultimately caused him to leave his chosen profession of hairdressing, working instead as a barber.
Findings of the tribunal
Upon hearing the complaints, Tribunal Senior Member Scahill and General Member Newman commented that although the harassing behaviour was not the worst they had ever seen, it had clearly impacted upon the apprentice in a very significant way and had caused him to change his future career plans.
The nature of some of the inappropriate behaviour was found to be sexual harassment, particularly the physical contact and comments regarding being a ‘bitch’ and a ‘gay couple’. Moreover, the significant disparity in power between an employer or senior employee and an apprentice was such that the worker was reasonably and clearly intimidated, humiliated and harassed.
The employing business was also held vicariously liable for the conduct on the basis that it had failed to ensure a workplace free of harassment and had failed to appropriately respond to the worker’s complaints.
The worker was awarded compensation comprising:
- $5,000 in general damages for the sexual harassment by the employer
- $10,000 in damages for the trainer’s sexual harassment
- $15,000 for victimisation
As this case demonstrates sexual harassment and inappropriate conduct can occur in any workplace, and between any gender. If you are concerned about a case of potential harassment at your organisation, contact us for assistance. We offer both supported and full workplace investigation services.