A number of recent sexual harassment cases have seen a dramatic increase in the non-financial and overall damages awarded in such claims. This new approach in assessing damages in sexual harassment cases is reflective of community standards regarding the impact of sexual harassment and the adverse consequences and costs that can follow, including loss of employment, severe psychological illness and relationship breakdowns, reputational and brand damage, as well as the real risk of personal liability for individuals involved.
The relevant courts and tribunals are finding that the traditional awards of compensation for non-financial loss in sexual harassment cases that used to be in the range of between $10,000 to $20,000 are no longer in line with those current community standards. As a result, we have seen a dramatic increase in the damages awarded in sexual harassment claims. We expect that this will become the new normal in such claims.
In Queensland, a recent Queensland Civil and Administrative Tribunal (QCAT) case of Green v State of Queensland, Brooker and Keating  QCAT 008 found that a sexually charged workplace prank played on a cleaner at a school was sexual harassment. The cleaner suffered acute anxiety/post traumatic stress disorder in the month after the prank, preventing his return to work. The cleaner then suffered subsequent victimisation, which led to a further diagnosis of alcohol-use disorder, secondary to post traumatic stress disorder.
QCAT awarded the cleaner $70,000 compensation for non-financial loss as a consequence of suffering psychological injures following the sexually charged workplace prank, with a total award of some $156,000 in compensation.
The two colleagues were also found to be personally liable, with orders that the cleaner’s supervisor pay 50% of the total compensation award personally. This order was made on the basis that the supervisor was partly responsible for the sexual harassment conduct and the subsequent impact on the cleaner, and the cleaner’s employer was also found to be vicariously liable for the conduct of the two colleagues.
In Victoria, an employee was awarded over $330,000 in damages in the case of Collins v Smith (Human Rights)  VCAT 1992, for conduct by a manager that included repeated attempts to kiss and embrace the employee, engaging in sexual conduct and making sexual advances towards the employee, as well as sending incessant text and phone messages to the employee.
Employers need to be vigilant and actively manage the risks in this space to protect their business, brand and their employees.
Employers should ensure that they have an adequate workplace behaviours policy in place, covering sexual harassment, discrimination and bullying as well as victimisation. Employers should also ensure their policies in this space include an adequate complaints handling procedure and consider appointing contact officers as an appropriate contact point for employees, to encourage complaints to be dealt with quickly and internally.
Training, including induction and annual refresher training should be regularly delivered.
Employers should ensure that they are adequately managing workplace culture and behaviours, and setting clear standards for appropriate behaviour at all levels.
Given the significant impact sexual harassment claims can have on a business and employees as well as the potential brand damage, taking these steps can greatly assist employers when dealing with such claims and when being held vicariously liable for such claims.
Our Workplace Relations and Safety team are well placed to assist employers in preparing appropriate policies to assist your business to reduce the risk of sexual harassment and external complaints occurring in your workplace. Our Workplace Relations and Safety team can also prepare and deliver customised training on sexual harassment, discrimination and bullying in your workplace specifically aimed at managing and reducing these risks for businesses.
Authors: Justine Ansell
Rachel Drew, Partner
T: +61 7 3135 0617
Justine Ansell, Special Counsel
T: +61 7 3135 0507
Charles Power, Partner
T: +61 3 9321 9942
Ben Marshall, Partner
T: +61 3 9321 9864
Stephen Trew, Managing Partner
T: +61 2 8083 0439
Michael Selinger, Partner
T: +61 2 8083 0430
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.