It wasn’t ‘accidental’ touching – $30,000 for victim of sexual harassment at work

November 20, 2019

A Foodland employee who suffered sexual harassment at the hands of her male co-worker has been awarded compensation against both him and the employer after the South Australian Employment Tribunal found that the physical contact he had with her was more than the ‘accidental touching’ that he claimed.

The harassment involved inappropriate touching and comments that started shortly after the male co-worker commenced employment and culminated in an act of extremely inappropriate touching.

The Sexual Harassment Claim

At the time, the woman was working in the ‘Juice Bar’ section of the Foodland store producing fresh juices for customers and preparing fruits and vegetables for the store café.  The male co-worker was employed as Executive Head Chef and Food & Beverage Services Manager, which included performing cooking demonstrations at a food preparation station located close to the Juice Bar.

From shortly after he started at the workplace, the co-worker began to refer to her as ‘sweetie’ or ‘darling’.  Although this made her feel uncomfortable she didn’t complain to him, other co-workers or management about it as she thought it would be regarded as too frivolous a matter to be making a formal complaint about.  She also didn’t think at the time that there was any ill-intention on his part.

After later events however, she took the view that this was in fact a form of ‘grooming’ leading up to his thinking that it was acceptable to touch her in an invasive manner, or conditioning her to accept that happening.

The co-worker on the other hand denied calling her ‘sweetie’ or ‘darling’ stating that he wouldn’t use those terms and that his standard form of address for a woman whose name he had forgotten was ‘bella’ which he viewed as being much the same as calling someone ‘mate’.  While the Tribunal found that he had addressed the woman in the manner she described, it noted that such terms are commonplace and are not sexual in nature.

It was the physical contact that was of greater concern.  The woman’s evidence was that the male co-worker would touch her as he walked by, or touch her on the shoulders or the middle of the back to get her attention or go around her.  Over time she noticed he walked past her more frequently, unnecessarily and in an increasingly invasive, aggressive and sexualised manner.  She said that he would pass her to reach a bin that was not conveniently located for his purposes.

He then began at times to put his hands on her lower back or hips as he moved past her, and on occasions he would brush the back side of his hands across her buttocks and lower back.  He would press against her unnecessarily when going past to the extent that she could feel his breath on her neck.  Even when it appeared there was room for him to pass her without contact, he would press the whole of the front of his body against her.

According to the male co-worker, the workstation was ‘like a submarine’ and staff would frequently need to get past one another in a confined space.  He denied the allegations, stating that what was alleged to have occurred either didn’t happen, or was the result of accidental contact which did not amount to sexual harassment.  However, his evidence was rejected by the Tribunal which concluded that slight accidental bumping might explain one or two incidents, but not the repeated incidents alleged by the woman.

These events culminated in a series of incidents on the one day.  That morning when she was standing at the Juice Bar and saw the co-worker coming toward her and pass behind her to use the bin.  She said that as he passed, he pushed the trunk of his body up against her with his hand squashed between her buttock and his body, and did the same thing on the way back.  About an hour later he repeated this behaviour and after he passed, she looked at him and made eye contact, seeing what she described as a ‘very sexual look on his face.’  On the same day he passed her again and in doing so slid his hand over her buttocks and down toward her vagina, pressing his body against her as before.  Because of the earlier incidents she kept her legs firmly together but was knocked off balance.  She said that she felt dirty, ashamed, upset and angry and told a nearby colleague that ‘the chef just touched my arse’ but the response was to the effect that ‘chefs had a tendency to act in such a way.’

A report was also made to the Assistant Store Manager who viewed security footage of the location with the HR Manager.  According to the Tribunal however, neither man treated the complaint seriously, nor took any statement from the woman or recorded what she said.  It concluded that they didn’t spend much time looking at the CCTV footage or carefully examining it which was destroyed shortly after.  Although the location of the camera wasn’t ideal, their evidence was that it showed one instance of contact between the two, when the man shuffled past the woman with his hands raised.  The Tribunal said that the ‘careless approach to the complaint and the viewing of the footage is an important element with respect to’ the employer’s liability.

The two continued to work near to each other although the woman stopped talking to or acknowledging the man, avoiding giving him any further chance to touch her.  Some six weeks later when she refused to prepare a juice for him, the male co-worker complained about her to management.  She then asked what had been done about her complaint and was told that the security footage didn’t show anything inappropriate so no further action had been taken.  She was then told that they would speak to the man and was later informed that he had said he wasn’t aware of what she had alleged but had offered to apologise.

The co-worker and the employer both suggested that the woman had fabricated her complaint at a later time for reasons related to her employment situation.  Nevertheless, the Tribunal found that the man had pressed his body against the woman and that by doing so he engaged in conduct that was sexual in nature and was extremely unwelcome.

Liability of the Employer

Vicarious liability in a case such as this refers to a ‘secondary liability’ that the employer has for the wrongful actions or omissions of its employees because it has the ‘right, ability or duty to control’ what the employee does while at work.

Under the Equal Opportunity Act it is presumed that the employer is vicariously liable for a discriminatory or unlawful act of an employee (who was acting in the course of their employment) unless it can be shown that the employer had taken reasonable and sufficient steps to prevent the harassment.

Here, the employer claimed that it was not liable for what had occurred in the workplace as it had in place an appropriate policy to prevent sexual harassment which it took reasonable steps to implement and enforce.

The Tribunal concluded however that although the employer had in place a policy for the prevention and reporting of sexual harassment in the workplace and the man was aware of and understood that policy, the action taken in relation to the woman’s complaint was inadequate.  No formal investigation was undertaken, the woman was not asked to provide a statement, witnesses weren’t interviewed at the time, no steps were taken to preserve the CCTV footage and the matter wasn’t escalated to senior management.  The failure to properly investigate the claims formed the basis to find the employer vicariously liable.

Compensation for Sexual Harassment

The woman had suffered from a psychological disorder as a consequence of the harassment which caused her to suffer economic loss.

She experienced difficulty sleeping and eating resulting in the loss of a significant amount of weight, and suffered from nightmares.  University studies she was undertaking began to suffer.  She continued to suffer from fear and anxiety and was diagnosed with an Adjustment Disorder with Depressed and Anxious Mood.  The failure by the employer to undertake a proper, timely and adequate investigation exacerbated her condition.  The woman made a workers compensation claim through which she was compensated for some of her medical expenses and lost earnings.

The Tribunal noted that while this was not the most serious kind of sexual harassment and didn’t occur over a long period of time, nevertheless the woman was entitled to compensation.  The woman was awarded $30,000.00 for general damages including the psychological harm, suffering and hurt feelings.

As the Tribunal observed, “Sexual harassment has many degrees of seriousness.  Anything from a few brief words to rape can meet the definition of sexual harassment under the South Australian Equal Opportunity Act.”  Any person who has been subjected to sexual harassment, in the workplace or elsewhere, can obtain immediate assistance by contacting a specialist discrimination lawyer at Websters Lawyers by calling 8231 1363 or requesting a call through our contact page.

Evans v Ikkos Holdings Pty Ltd and Ythos Holdings Pty Ltd and Ikia Holdings Pty Ltd T/As Foodland and Crugnale [2019] SAET 222 (7 November 2019)