Workplace sexual harassment and compensation

Everyone has the right to a workplace that is safe and free from sexual harassment. Despite legislation across multiple Acts of Parliament aimed at protecting workers against sexual harassment, incidents continue to occur. In this article, we look at the options for compensation for those who have experienced sexual harassment at work.

Sexual harassment is defined as unwelcomed sexual behaviour which could be expected to make a person feel offended, humiliated or intimidated including sexual advances, request for sexual favours or engagement in conduct of a sexual nature. Sexual harassment is not consensual flirtation.

This is the definition of sexual harassment regardless of where it happens.

If you or someone you know has been physically or mentally injured from sexual harassment in the workplace, you can make a WorkCover claim for no fault statutory benefits including weekly payments, medical expenses and a lump sum claim for permanent impairment.

You must notify your employer within 30 days of becoming aware of your injury and make a claim through WorkCover and provide a copy to your employer.

Under work health and safety laws, employers have a responsibility to keep their employees, including independent contractors, safe in the workplace so far as is reasonably practical.

If a manager or supervisor receives a complaint or notices unwelcomed sexual behaviour, they must take reasonable steps to address the issue and take appropriate action against the person in question. However, sexual behaviour is not always noticeable and often people resist making complaints for fear of losing their job and career prospects.

Thus, it is important that employers take appropriate pro-active action to educate their employees and contractors of acceptable conduct. This is done through appropriate training and ensuring a supportive workplace culture that allows people to make complaints without any repercussions. An employer must identify hazards and decide on appropriate risk controls to prevent sexual harassment.

If an employer breaches work health and safety laws and does not take reasonable steps to prevent risk of injury, including injury from sexual harassment, and you suffer a ‘serious injury’ as a result of this, you may be able to make a common law claim against your employer.

The claim can be made on the basis that your employer was:

• vicariously liable for the unlawful actions of its employees; or
• negligent in failing to prevent the harassment; or
• negligent in managing the complaint of sexual harassment.

You will need to have evidence that the acts of sexual harassment occurred and that your employer is vicariously liable (that is, legally responsible for the actions of others) by showing that the wrongful acts could be regarded as having been committed in the course of employment.

In the high profile case of Prince Alfred College v ADC, appealed to the High Court of Australia on the issue of vicarious liability, the employer was found to be vicariously liable for intentional wrongdoing by employees. Key features that led to the finding included the level of seniority and authority and control of the person that committed the sexual act on an employee.

You have 6 years from the date that you become aware of your injury, to make a common law claim. After that date, your rights to a workers compensation common law claim may be permanently lost.

If your injury did not occur at work, you can still bring a civil claim against the perpetrator, however it will not be governed by the WorkCover scheme. Your claim against the perpetrator needs to be brought under the Wrongs Act 1958 (Vic) within 3 years from the date you first noticed the unwelcome conduct.

Unlike a WorkCover common law claim, you are not required to prove that you have a serious injury to claim pain and suffering damages. You must be able to prove that the perpetrator owed you a duty of care and that by engaging in the unwelcome sexual conduct, breached that duty of care towards you and for that reason you have suffered loss, damage or injury.

Before pursuing a claim like this, it is important to consider whether the perpetrator has any financial assets that can be used to fund the compensation you may be awarded at court. If the perpetrator does not have any financial assets, even if you win your claim at court, your claim may not be financially viable.

Your employment status should not affect your entitlements under the WorkCover legislation.

In relation to termination of employment due to making a complaint, you may have adverse action claim under the Fair Work Act 2009 (Cth). It is highly recommended that you speak with a representative from your union or an employment lawyer about your entitlements if you think that you were terminated because you complained of the sexual harassment.

Your WorkCover entitlements are not affected if you make a claim at the Fair Work Commission. You are not prevented from making a claim under the Fair Work Act 2009 (Cth) if you are receiving WorkCover entitlements.

No, your WorkCover entitlements are not affected by the person being charged with a criminal offence.

You should be aware that in addition to your WorkCover entitlements, you may be entitled to a Sentencing Act claim for compensation within 12 months of the perpetrator pleading guilty or being found guilty by a court, and/or financial assistance through the Victims of Crime Assistance Tribunal.

If you are unwilling or unable to pursue compensation with a WorkCover claim, there are also options under the Sex Discrimination Act 1984 (Cth) (“SDA”) and Equal Opportunity Act 2010 (Vic) (“EOA”).

There are many differences between claims through the workers compensation system and those through the SDA or EOA.

Summarised below are some key points when considering which compensation options to pursue:

1. The ‘serious injury’ threshold: in a WorkCover claim for common law damages (suing your employer), you must prove that you have a serious injury. This is a strict gateway test to access damages. If you cannot prove that you have a serious injury you cannot claim damages. There is no such gateway test in a claim under the SDA or EOA and your condition need not be permanent and ongoing.
2. Time limits: in a WorkCover claim for common law damages: you have 6 years to make your claim. Under the EOA, you have 12 months from the date of the harassment, to make the claim. Under the SDA, you have 6 months to make a claim.
3. Compensation available: in a WorkCover claim for common law damages, you can claim pain and suffering and economic loss. Under the EOA and SDA, you can claim the same compensation and aggravated damages which are meant to punish the perpetrator.
4. Compensation amounts: generally, WorkCover common law claims yield higher awards of damages if you satisfy the serious injury threshold and that your employer was negligent. Below are some examples to demonstrate the difference.

In the case of Matthews v Winslow Constructors, the plaintiff was awarded over $1.3 million under WorkCover legislation after being diagnosed with bipolar disorder, anxiety and chronic PTSD rendering her unable to return to work following incidents of severe abuse, bullying and sexual harassment involving name calling, threats of violence and rape.

In the case of Richardson v Oracle Corp (Australia) Pty Ltd was awarded $100,000 for pain and suffering and $30,000 for economic loss under the SDA after being diagnosed with chronic adjustment disorder, anxiety and depression and intimacy issues with her partner following incidents of sexual harassment which included repeated sexual comments and advances. The plaintiff was able to return to work in another company and her health had improved at the time of trial.

Each case rests on its facts but these examples demonstrate a difference in the awards of compensation.

5. Costs: in WorkCover claims, if you are successful, the court can award costs against whom the decision is made and this can reduce the legal costs you pay at the end of your claim. They are known as “costs that follow the event”. Under the EOA, the court does not award costs following the event. The SDA may apply similarly to the WorkCover scheme.
6. Which court hears your matter: a claim under the SDA will be heard at either the Federal Court or the Federal Circuit Court. A claim under the EOA will be heard at the Victorian Civil Administrative Tribunal (VCAT). A WorkCover claim for common law damages will either be heard at the County Court or Supreme Court.

Making a claim under the SDA or EOA does not prevent you from pursuing a WorkCover common law claim. However, if an award of damages for pain and suffering is awarded in one of the claims, it will be considered in the other.

If you or a loved one have been exposed to sexual harassment in the workplace and have sustained an injury from it, please contact Polaris Lawyers on 1300 383 825 for a free and confidential chat with one of our lawyers. It costs you nothing to find out where you stand.