The increasing concerns of sexual harassment in the workplace
Now more than ever, there is a public push for the elimination of sexual harassment in the workplace. In recent times, we have seen media flooded with stories on sexual harassment. In response to these allegations, the Federal Government is strengthening national laws to better prevent, respond to and tackle sexual harassment in Australian workplaces.
Over the past 12 months, there have been a string of media articles and industrial decisions concerning sexual harassment and discrimination in the workplace. These incidents of sexual harassment were not just limited to the workplace, but also canvasses social media and out of hours conduct. Judges consistently described the sexual harassment behaviour by the accused as ‘appalling’ and severe penalties were handed down. The following decision concerning the award of damages to a victim of sexual harassment reiterates this message.
Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107
The factual circumstances of this matter concerned a corporate poster picturing a female employee with her hands outstretched and the words “Feel great – lubricate!” displayed at the Sydney Water workplace to promote an injury prevention program.
In 2019, the New South Wales Civil and Administrative Tribunal (NCAT) found that the creation and display of the poster constituted sexual harassment and that Sydney Water Corporation and Vitality Works Australia Pty Ltd, the designer of the poster, had contravened s 22B and s25(2)(c) of the Anti-Discrimination Act 1977 (NSW).
Sydney Water Corporation then appealed against the finding but lost the appeal. Both Sydney Water Corporation and Vitality Works accepted that Ms Yelda suffered humiliation and distress as a consequence of their actions. Vitality Works later issued a ‘apology’ – apologising for the ‘miscommunication’ over the poster.
In February 2021, the matter was heard by NCAT on the question of damages. Ms Yelda sought damages in the amount of $100,000 from each respondent based on four heads of damages, being injury to feelings, personal injury, past economic loss and aggravated damages.
In assessing damages, NCAT accepted that display of the poster remained a significant cause of Ms Yelda’s hurt feelings and the psychological injury. It also accepted that, on the balance of probabilities, as a consequence of the display of the poster, it was likely some employees of Sydney Water would have thought the ‘lesser’ of the Ms Yelda or held her up for ridicule.
When assessing the loss and damage, NCAT found the total losses would be $318,280. However, in the NSW jurisdiction the statutory cap for the award of damages was $100,000. Accordingly, the NCAT ordered $100,000 to be paid each by Sydney Water Corporation and Vitality Works.
NCAT had a bit more to say in respect of Vitality Works’ apology, attributing $5,000 for aggravated damages against it, saying:
“…the alleged insincerity of Vitality Works’ apology. We accept in the broad that the apology was “minimal” and far from a full apology. We agree with the assessment that the so-called apology was full of “weasel words” which sought to minimise Vitality Works’ role in the display of the Poster. The claim that there was a “miscommunication” trivialized what had occurred.”
It's not every day you see the term “weasel words” being used in a judgement, clearly NCAT was not impressed by the non-apology apology.
Take Away Message
A positive workplace culture correlates directly with the working relationships between employees. Now more than ever, it is critical for employers to implement robust staff training on expectations surrounding sexual harassment and conduct in the workplace.
The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill) was introduced on 24 June 2021 in response to a number of recommendations raised in the Sex Discrimination Commissioner’s Respect@Work Report (the Report) emphasising the importance of organisations having a preventative focus, awareness and proactive measures in place to prevent sexual harassment from occurring. It is only a matter of time before the Bill is passed.
We strongly recommend all organisations getting on the front foot, and proactively review, update and amend their policies and procedures to address any deficiencies, and train all staff to raise awareness and send a firm and consistent message on what is, and what isn’t acceptable.
To find out how Norman Waterhouse can assist you with this process or for more specific information on any of the material contained in this article, please contact Virginia Liu on +61 8 8210 1279 or vliu@normans.com.au.