A tribunal has awarded a beauty therapist $150,000 in general damages after sexual harassment and assault by a male co-worker.
VCAT Member Ian Scott found the male beauty therapy company Hebeich Pty Ltd, which trades as “Man Oh Man”, vicariously liable for failing to prevent or adequately address the sexual harassment and assault.
He said that the $150,000 effectively represents compensation of less than $70 per day over six years, from the time the harassment began in January 2018 until the end of 2024.
Member Scott found that the only precautions that Man Oh Man took to prevent the beauty therapist from sexual harassment involved making the handbook electronically available and discussing the handbook “in a rudimentary manner” in one staff meeting.
He said there was no evidence that the co-worker ever read the handbook.
The member highlighted that the employer provided no evidence of any handbook-specific training, no follow-up on whether employees read or understood the handbook and no evidence that any employee accessed the electronic handbook.
Member Scott said Man Oh Man failed to take reasonable precautions to prevent the sexual harassment even after the therapist complained and that it failed to “implement any, let alone an adequate, educational programme on sexual harassment issues, monitor the workplace to ensure compliance with its sexual harassment policies or take appropriate steps to communicate its sexual harassment policies to all employees”.
The director claimed that the therapist complained twice about the co-worker’s behaviour before the sexual assault.
She said the first complaint was about the co-worker speaking to the therapist and making her “feel belittled or inferior to him” and that the second complaint was about him deliberately and frequently “brushing up against her”, but denied the employer had received complaints of sexual harassment.
After each complaint, the director spoke to the co-worker, who apologised and said he wouldn’t do it again.
Member Scott preferred the therapist’s evidence that she complained twice to the director about the co-worker sexually harassing her and found that the director knew of it from the time of the first complaint.
He found Man Oh Man’s responses to the complaints “manifestly inadequate”.
Member Scott said that after the first complaint, the company should have conducted an investigation, given the co-worker a warning and threatened disciplinary action, provided sexual harassment training and ensured that the co-worker had read and understood the anti-discrimination and equal employment opportunity policy in its handbook.
He found it likely that the harassment would have stopped and that the assault could have been prevented.
He found Man Oh Man vicariously liable under s109 of the Equal Opportunity Act.
The co-worker faced criminal proceedings for the sexual assault.
The director failed to take any disciplinary action until five months after the sexual assault because she said she wanted to await the result.
On the advice of her legal team, she issued the co-worker a written warning saying that the sexual assault incident, which she described as sexual harassment, was not acceptable and if it occurred again he would be dismissed immediately.
Member Scott said that under the Equal Opportunity Act, damages are an attempt to measure the loss, damage and injury that the victim has suffered as a result of the sexual harassment.
The beauty therapist, who only sought general damages, claimed she sees a psychologist weekly to deal with various mental health symptoms and conditions exacerbated by the sexual harassment.
The member acknowledged the Equal Opportunity Act’s objective to eliminate sexual harassment and the approach to compensation established by Richardson v Oracle (see Related Article) before awarding $150,000 in general damages.
Oliver v Bassari (Human Rights) [2022] VCAT 329 (28 March 2022)
