A tribunal has recently awarded a worker who worked as a waitress in a Caf� and who was sexually harassed and assaulted by the owner $140,000 in damages. The damage was based on the nature of the conduct and the continued "profound and significant detrimental impact" on her quality of life. In addition to the damages the employee was awarded $10,000 in aggravated damages and $26,500 in costs.

Sexual Harassment – Serious and Possibly Costly

A tribunal has recently awarded a worker who worked as a waitress in a Café and who was sexually harassed and assaulted by the owner $140,000 in damages.  The damage were based on the nature of the conduct and the continued "profound and significant detrimental impact" on her quality of life.  In addition to the damages the employee was awarded $10,000 in aggravated damages and $26,500 in costs.

The waitress alleged that the owner contravened the Queensland Anti-Discrimination Act 1991 by sexually harassing her at work.  In the Queensland IRC the worker sought costs and $130,000 in compensation for pain and suffering.

The sexual harassment was not ongoing in nature and on the day of the assault took place, the waitress was working a split shift alone with the owner.  During the break between shifts the waitress intended to visit a friend who lived close to her work. However the owner persuaded her to stay for a drink because he needed someone to talk to.

After they had a drink, the owner asked the waitress if she would have sex with him and she refused.  However towards the end of the dinner service on her second shift and after the customers had left, the waitress further alleged that the owner grabbed her and touched her buttocks and crotch area through her clothes.

He began sexually assaulting her and in order to get away she told the owner that she wanted to go outside for a cigarette.  When she tried to open the door, she realised it was locked, leaving her no way to leave.

The matter was reported to the police and the owner pleaded guilty in court to one count of sexual assault.

The Tribunal in settling the matter observed that the waitress had refused the owner's request for sex, attempted to leave but found the doors locked and "pleaded" with him to stop because "he was making her feel uncomfortable".  The deputy president stated that these actions showed his verbal and physical conduct had been unsolicited and unwelcome, which amounted to sexual harassment.

Positive Duty of Care

In December 2022 a positive duty of care for sexual harassment in the workplace became a legal obligation for all private industry in Australia.  This positive duty of care requires organisations and businesses to proactively take "reasonable and proportionate measures" to eliminate sexual harassment, sex-based discrimination, and a hostile work environment, rather than just reacting after harm has occurred. 

The important part of this legislation is that it places the responsibility on employers and persons conducting a business or undertaking (PCBUs) to create and maintain safe, respectful, and inclusive workplaces.  

If you have read this bulletin, I suggest that your next move should be to review your policies and processes to ensure that they are proactive in nature and are sufficient to protect your business if such a claim was lodged against your business.

If you need assistance in this area, please contact me on 0428 112 009, or via email at john@lambwrc.com.au.