In a recent appeal, Richardson v. Oracle Corporation Australia Pty Ltd  FCAFC 82 (15 July 2014), the Full Bench of the Federal Court awarded significant damages to a worker who had been sexually harassed at work.
The Federal Court upheld the appeal and overturned the previous award of $18,000 for general damages, awarding the claimant more than $100,000 for general damages and economic loss. While the original amount was within the range awarded in similar cases, the court found that this figure was no longer in step with prevailing community standards.
The court found a substantial disparity between the awards of damages in other personal injury cases and the typical compensatory damages provided to victims of sexual harassment, a form of sex discrimination.
This is likely to have a significant impact on the amount of general damages awarded in future sex discrimination claims.
The award in this case identified failures in the employer’s reasonable steps to prevent sexual harassment.
What does this mean for employers?
This decision does not signify a change to employers’ liability under anti-discrimination law. However, for an employer found to have breached anti-discrimination laws, the financial implications could now be a lot higher.
What do you need to do?
Employers have an obligation under anti-discrimination laws to take reasonable steps to prevent discrimination or harassment in their workplace. In the event of a claim, an employer must be able to show it has adequate procedures in place and that these procedures meet the stringent requirements of the courts.
As part of its defence to the claim of employer liability, the employer in this case argued that its Code of Ethics and Business Conduct, which also dealt with sexual harassment, together with a requirement that all staff undertake on-line sexual harassment training every two years, were evidence of the reasonable steps it had taken to prevent sexual harassment in the workplace. The Federal Court found that this was not enough; in part because of inadequacies in their on-line training course, which did not state, in clear terms, that sexual harassment is against the law, nor did it identify the source of the relevant legal standard, or that an employer might also be vicariously liable for the actions of its employees.
Reasonable steps for employers to take would include:
- Regularly reviewing and updating workplace policies dealing with discrimination and harassment.
- Providing employees with regular training on these policies, including comprehensive, face-to-face induction training and refresher training at least every 18 months.
- Ensuring managers receive training with regard to the increased risk in this area.
- Ensuring managers are aware of their personal obligations to monitor, manage and prevent inappropriate conduct in the workplace.
- Considering linking manager compliance with these policies to annual salary and/or any periodic bonus reviews.
- Implementing a whistleblowing policy and procedure that enables employees to confidentially report discrimination and harassment issues in the workplace.
- Reviewing arrangements for any staff who work offsite to ensure regular monitoring is in place.
- Proactively managing risks when dealing with complaints or claims.
The Australian Human Rights Commission
Safe Work Australia - Managing Risks to Health and Safety at the Workplace
Australasian Legal Information Institute
We have a number of useful resources on this and many other topics available on this website or by calling risksupport on 1300 660 827. They include Making your workplace a safe place: Developing a work health and safety management system.
Our online Sexual Harassment training course is available via Learning Manager, our web-based training system. This module has been designed to help clients meet their various obligations.
For an obligation-free demonstration call 1300 660 827 or email firstname.lastname@example.org