Recently, the Tasmanian Anti-Discrimination Tribunal ("the Tribunal") in Lucy Orchard v Frayne Higgins [2020] TASADT 11 (1 September 2020) made an aggravated damages order against a Toll Transport courier for sexually harassing a Sanity store manager and then serving her with a retaliatory defamation letter after she lodged an internal complaint about his behaviour.
Sexual harassment defined
Under s28A of the Sex Discrimination Act 1984 (Cth), a person sexually harasses another person, if:
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; and/or,
- engages in other unwelcome conduct of a sexual nature in relation to the person harassed.
The reasonable person test applied in these circumstances, requiring assessment of whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated, or intimidated.
A non-exhaustive list of circumstances that may be considered include:
- age
- sexual orientation
- gender identity
- marital or relationship status
- disability status
- religious belief
- any other relevant circumstance
The Claim
The Sanity store manager claimed that the Toll Transport courier had engaged in behaviour of a sexual nature, which included slapping her on the bottom, repeatedly calling her "Juicy Lucy" and asking her on numerous occasions about her relationship status. The manager noted how the name in particular made her feel uncomfortable because of 'sexual connotations and overtones attached'.
When the courier was spoken to by the store's manager and assistant manager, he responded with laughter. He did not deny the conduct but remarked "don't tell your boss I did that".
Three years later, these incidents were brought to the attention of a Sanity area manager who instigated an investigation into the courier's conduct by Toll. After the store manager received an "[un]pleasant" phone call at the store from the courier's wife, she requested that Sanity drop the complaint "because she did not feel safe [and] did not want to cause trouble".
Sometime later, the store manager received a letter from the courier indicating that he was considering a defamation claim against her. After being prescribed anti-depressants by her doctor and leaving her job at Sanity, the then ex-store manager lodged her claim with the Tribunal.
The Outcome
The Tribunal accepted the store manager's evidence of all alleged conduct by the courier, including the bottom-slapping, which was supported by accounts from other staff members. Although the Tribunal Member found nothing "overtly sexual" in the name "Juicy Lucy", evidence of the context in which it was used distinguished the remark as unwelcome, with sexual connotations.
The courier's defamation letter, whilst not amounting to victimisation in the circumstances, was recognised as a principal aggravating feature - "it [was] disgraceful to send a letter to a young woman demanding she retract her complaint, apologise and pay $30,000 in circumstances where the allegation was true".
The courier was ordered to pay $20,000 to the store manager and $25,000 in compensation for "the injury incurred as a consequence" of his conduct.
Whilst sexual harassment continues to front courts and tribunals in 2020, it is clear that there is work still to be done. Employers must have effective anti-discrimination and harassment policies in place to guide fair and lawful investigation processes if allegations of this nature are raised.
To coincide with such policies, it is imperative that employees participate in bullying and harassment training to ensure that they are clear on what does and doesn't constitute bullying or harassment of any kind, and how to report this behaviour to the employer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
