A tribunal has awarded a record $330,000 damages payout to a sexually harassed postal worker, after the Victorian Human Rights and Equal Opportunity Commission responded to an invitation to intervene and make submissions on compensation.
Vice President Judge Pamela Jenkins also ordered costs against the employer.
The Tribunal found in July last year that the postal worker was victimised by her manager over a four-month period after he made repeated unwanted physical and verbal sexual advances and subjected her to more than 30 incidents of discrimination in the workplace.
The Victorian Equal Opportunity and Human Rights Commission (VEOHRC ) intervened in the case after the employer argued that the Accident Compensation Act 1985 and Workplace Injury Compensation Act 2013 prevented the Tribunal from exercising its power under s125 of the Equal Opportunity Act 2010 to award damages for injuries sustained on the job.
VEOHRC involvement assisted the Tribunal in determining whether either Act restricted compensation awarded under the EO Act by analysing the nature, purpose and scope of the EO Act and the workers’ compensation legislation.
The employer’s argument, if adopted would have limited the tribunal’s ability to award compensation to a person injured as a result of unlawful discrimination or sexual harassment in contravention of the EO Act.
VCAT found the employer’s claims “misconceived” and “without merit” and accepted the Commission’s submission that, in line with the general authorities on inconsistency of legislation, the power conferred by s 125(a)(ii) “can comfortably co-exist” with the provisions of the ACA and the WIRCA.
The tribunal also considered the VEOHRC submissions that it ought to consider contemporary community standards when determining the amount of compensation payable in cases of sexual discrimination.
The Tribunal recognised that changing community attitudes to the adverse consequences of sexual harassment extend beyond the loss of employment to include severe psychological illness, relationship breakdown and negative impacts on general health and wellbeing.
The tribunal accepted that there was a nexus between the alleged sexual harassment and the employee’s subsequent psychological trauma and that the employee had taken all reasonable steps to maintain a professional working relationship and discourage the manager’s inappropriate behaviour.
Vice President Judge Jenkins awarded the postal worker $332,280 in damages.
This included $180,000 general damages, aggravated damages of $20,000, $120,000 for both past and future earnings and $12,280 for out-of-pocket expenses.
She noted that the employee’s circumstances were aggravated by the previous amicable and professional working relationship between the parties, which made the employee particularly vulnerable.
The judge accepted that the manager’s actions throughout the proceedings were unreasonable, particularly his failure to accept offers to settle and his submissions that parties were not bound by offers made to resolve proceedings.
Despite parties generally bearing their own costs in anti-discrimination matters because awards for costs are rare, Judge Jenkins was satisfied the employer’s case was very weak and that it was fair to order costs in favour of the employee.
Herbert Smith Freehills partner Tony Wood told Workplace Express that the overall damages award was consistent with the principles set out in the full Federal Court’s “game-changing” Richardson v Oracle judgment in 2014.
He said larger amounts of general damages had been awarded since Oracle.
The $20,000 aggravated damages award recognised the significant humiliation and hurt the employee suffered and was consistent with damages principles in tort.
It wasn’t cast in a manner that would constitute punitive damages, Wood said, and the amount was relatively modest alongside the $180,000 general damages order.
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Most businesses – including small businesses – are now covered by the national Fair Work system created by the Fair Work Act 2009.
Fair work Inspectors appointed by the Fair Work Ombudsman have the power to enter a workplace at any time during working hours to inspect records and ensure compliance: Read more about fines and penalties: Fair Work Act 2009
HR Managers, Directors and people responsible for payroll and administration functions also risk personal fines under Section 550 of the Fair Work Act 2009.
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