A recent Queensland decision has provided a good example of an employer successfully defending a sexual harassment claim brought by an ex-employee. The complainant alleged that he had been subjected to sustained sexual harassment which culminated in a fellow assembly line worker sneaking up behind the employee in the kitchen and performing a sexually suggestive action on the complainant’s body.
As a result of the kitchen incident, the complainant lodged a complaint with the Queensland Civil and Administrative Tribunal against the co-employee alleging he had engaged in unwelcome conduct of a sexual nature “with the intention of offending, humiliating or intimidating …” the complainant. The employee’s company was joined in the proceedings upon the allegation that it had failed to prevent the actions of the co-employee.
The complainant alleged that the company’s managerial staff “did not step up to the mark” when he reported various instances of sexual harassment including the kitchen incident. Although the complainant accepted he had received an employee handbook at the commencement of his employment which outlined the company’s sexual harassment policy as well as subsequent sexual harassment training, the complainant alleged the company was merely paying “lip service” to the policy. It relied on a previous Federal Magistrates Court decision where the Court observed that “it is not enough to have a policy. One must apply it.”
The Tribunal did not accept that the employer had failed to apply or police its sexual harassment policy. It found that the employer caused its employees to undertake training with respect to sexual harassment within the workplace on a number of occasions both before and after the harassment incident. By doing so, it did more than merely have a policy in place. It took sufficient positive steps to ensure awareness and attempted compliance with appropriate workplace practices. The employer had an appropriate policy in place and took steps to prevent the employee and others from contravening the law through, for instance, undertaking the training courses. As such, the employer has demonstrated to the requisite standard that it took reasonable steps to ensure awareness and attempted compliance with appropriate workplace practices.
Whilst the employer was found not to be liable for the actions of its employee, the employee was found to have contravened the law in his personal capacity and ordered to pay $8,000.00 in compensation to the complainant. Although the matter was determined under Queensland law, it is a useful reminder to all employers of the need to not only have appropriate sexual harassment policies in place, but also to implement those policies and ensure they are adhered to.
